Citation Nr: 1806181 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-00 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity. 2. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the left lower extremity. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 4. Entitlement to special monthly compensation (SMC) for the loss of use of both lower extremities. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esquire WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty in the United States Army from October 1963 to October 1965. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded these matters in December 2014. Finding that the remand directives had been accomplished, in December 2015 the Board granted a 10 percent evaluation each for radiculopathy of the right and left lower extremities. In a March 2017 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated the portion of the Board's December 2015 decision denying an initial disability rating in excess of 10 percent for both right and left lower extremities, and remanded these matters back to the Board for further proceedings. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2014 Travel Board hearing. A transcript of that hearing has been associated with the claims file. With regard to the claim for TDIU, the Board notes that a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating claim when such a claim is raised by the record. See, Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that in December 2017, Veteran's counsel submitted a letter requesting that the Board consider the matter of TDIU, arguing that the Veteran has been totally and permanently unemployable since 1999. Accordingly, entitlement to a TDIU is properly before the Board. The Board further notes that in their December 2017 letter, Veteran's counsel requested that the Board consider the matter of SMC based on the loss of use of the Veteran's lower extremities. The Board observes that the Court has held that a request for an increase in benefits should be inferred as a claim for special monthly compensation (SMC) regardless of whether it has been raised by the Veteran or previously adjudicated. See, Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Moreover, VA's governing regulations provide that the Board review a claim for SMC in the first instance if reasonably raised by the record. Here, the Board finds that the issue of SMC has been reasonably raised by the record and as such, is properly before the Board. This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained these systems to ensure consideration of the totality of the evidence. The issue of depression, to include as secondary to service-connected lumbar spine degenerative disc disease with spondylosis, has been raised by the record in numerous statements, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). This matter was previously referred to the RO by the Board in its September 2009 decision. This matter has not been adjudicated by the RO. As such, the Board does not have jurisdiction over it and the Board again refers this matter to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Bilateral Lower Extremity Radiculopathy The Veteran maintains that he is entitled to an initial disability rating in excess of 10 percent for each lower extremity. The Veteran was last examined by VA for rating purposes in December 2014. The Veteran submitted an affidavit dated October 2017 in which he states he states that he is "stuck in a wheelchair" and cannot put any weight on his legs due to the amount of pain he is in. The Veteran states that he uses a stool in his shower and neighbors and friends do his cooking and cleaning for him. The Court has held that when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See, Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his bilateral lower extremity radiculopathy. TDIU and SMC As the outcome of the claims for TDIU and SMC could be affected by the results of the above remand, they are inextricably intertwined with the claims being developed. See, Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, remand is also warranted with regard to the issues of entitlement to TDIU and SMC. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 2. After, and only after, completion of step one above, schedule the Veteran to undergo a VA neurological examination to assess the manifestations and current severity of the Veteran's radiculopathy of the right and left lower extremities. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his symptoms of radiculopathy of the right and left lower extremities. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner shall specify the nerves affected by the service-connected neurologic disability of the right and left lower extremities and provide an opinion as to the severity of any associated paralysis, neuritis or neuralgia (e.g., mild, moderate, moderately severe, severe). To the extent possible, the VA examiner should identify the symptoms manifested by any non-service connected disability impacting the Veteran's legs. The examiner should also comment on the impact the Veteran's radiculopathy of the right and left lower extremities are expected to have on his ability to be independent in his activities of daily living. Further, the examiner should elicit from the Veteran, and record for clinical purposes, a full work and educational history. The examiner should discuss the functional and occupational impairment caused by the service-connected condition. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided. 3. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).