Citation Nr: 18154027 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-14 563 DATE: November 29, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for right lower extremity sciatica associated with chronic lumbar strain with degenerative joint disease (sciatica) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded.   REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1975 to June 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Veteran testified at a live videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In December 2015, the Board remanded the Veteran’s claims for additional development. In February 2018, the Veteran was notified that the VLJ who conducted his hearing was no longer at the Board. The Veteran was afforded an opportunity for another hearing, which he declined. The Board herein grants the Veteran’s July 2017 motion to advance his appeal on the Board’s docket due to his medical condition. 38 U.S.C. § 7107; 38 C.F.R. § 20.900. The issue of entitlement to SMC based on the need for regular aid and attendance has been raised by the record and is part and parcel of his increased rating claim. See 38 U.S.C. § 1114(l); see also 38 C.F.R. § 3.350(b)(3). Accordingly, this issue has been added for appellate consideration. 1. An initial rating in excess of 10 percent for right lower extremity sciatica is remanded. The August 2017 VA examination and October 2017 addendum are inadequate, as they do not accurately reflect the Veteran’s current symptoms. In this regard, the examiner noted decreased sensation in the Veteran’s right foot and normal sensation in the right leg, while Veteran has competently and credibly reported that sometimes he cannot feel parts of his right leg and foot. Cf. August 2017 VA Examination Report and October 2017 Addendum Report; November 2018 VA Form 21-4138. Moreover, the August 2017 examination report noted different symptomatology than that described in the October 2017 addendum, yet no intervening examination was performed and no explanation was provided for this discrepancy. Cf. August 2017 VA Examination Report; October 2017 Addendum Report (indicating right lower extremity constant pain rated as “moderate” in August report and “none” in October report). The Veteran has recently asserted that his pain and symptoms are much worse than what the examiner has documented, with constant unbearable pain and burning in his right leg requiring use of a walker, swelling in his right foot, and trophic changes in his right toes. See November 2018 VA Form 21-4138. Given the above-cited discrepancies in the recent examination reports and the Veteran’s assertion of a worsening of his right lower extremity symptoms since those examinations, the Board will direct that the Veteran be provided a new examination on remand. 2. Entitlement to a TDIU is remanded. The August 2017 VA examiner opined that the Veteran had “severe limitations” due to his service-connected sciatica and back disability, including the inability to perform even mild physical work and the inability to stand for more than five minutes. Furthermore, the examiner noted that standing, twisting, and bending movements of the spine cause increased back pain. See August 2017 VA Examination Report and October 2017 Addendum Opinion. The evidence of record suggests that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities, given his education and occupational background. As the Veteran’s disability rating does not allow for an award of a schedular TDIU under 38 C.F.R. § 4.16(a), the Board will remand this matter for referral to the Director of the Compensation Service to consider the Veteran’s entitlement to a TDIU on an extraschedular basis. 3. Entitlement to SMC based on the need for regular aid and attendance is remanded. Through his representative, the Veteran asserts that due to the symptoms of his service-connected disabilities, he cannot leave his apartment and that he now needs around-the-clock care. See November 2018 VA Form 21-4138. Accordingly, the issue of entitlement to SMC pursuant to 38 U.S.C. §§ 1114(l) has been raised by the record. On remand, the Veteran should be scheduled for an appropriate examination. Updated VA and private treatment records should be secured. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals regarding the nature, etiology, and extent of his limitations, to include an amplification of his asserted inability to leave his home and his need for regular aid and attendance due to his service-connected disabilities. 4. Schedule the Veteran for a VA neurological examination with an examiner other than the August 2017/October 2017 examiner to assess the current severity of his right lower extremity sciatica. The claims file should be reviewed by the examiner. Any necessary tests, specifically including EMG testing if the Veteran consents to such testing, should be conducted, and all clinical findings should be reported in detail. 5. Then schedule the Veteran for a VA aid and attendance examination. The claims file should be made available to and be reviewed by the examiner. All necessary tests should be performed, and all findings should be reported in detail. 6. Then refer to the Director of Compensation Service the matter of whether a TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Should the Director indicate that further evidentiary development is required, such development should be undertaken. The Director’s attention is drawn to the August 2017 VA examiner’s statement that the Veteran cannot stand for more than five minutes, than he can at most walk for one-half of one block slowly, and that he is unable to work in a job requiring even a mild level of exertion due to aggravation of his back pain and sciatica. See August 2017 VA Examination Report and October 2017 Addendum. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel