Citation Nr: 18156815 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 09-39 964 DATE: December 11, 2018 REMANDED The appeal for special monthly compensation due to loss of use of buttocks is remanded. The appeal for special monthly compensation for loss of use of both feet is remanded. REASONS FOR REMAND The Veteran had active service from October 1968 to May 1970. In February 2016, the Board took jurisdiction of the appeals for special monthly compensation (SMC) for loss of use of the buttocks and both feet as part and parcel of the claims for higher ratings for peripheral neuropathy of the lower extremities which were before it at the time. At that time, the Board remanded the SMC claims for additional development. Following the development on remand, the Veteran requested a hearing before the Board. He later withdrew the request in August 2018. The Board notes the Veteran recently perfected another appeal that has not yet been certified to the Board for review. The Board will not address the appeal at this time as it appears that the Agency of Original Jurisdiction (AOJ) is still working on the appeal. The appeals for SMC due to loss of use of buttocks and loss of use of both feet, are remanded. In February 2016, the Board sought a VA examination to clarify whether the Veteran’s reported impairment in the use of his feet and buttocks was in fact “loss of use” and if so, whether such loss of use of feet and buttocks was due to service-connected peripheral neuropathy or another non-service connected disability. On remand, the Veteran was provided with a VA examination in June 2017. The examiner completed multiple disability benefits questionnaires. For the reasons explained below, the June 2017 VA examination reports appear incomplete. Additionally, the Veteran’s attorney submitted a favorable private opinion in November 2018; however, for the reasons explained below, the Board is unable to grant the claim based solely on the November 2018 private opinion. Regarding the loss of use of the buttocks, the June 2017 VA examiner completed a disability benefits questionnaire for muscle injuries and noted that there was no diagnosis of a muscle injury. Although the examiner noted the Veteran’s current symptom of being unable to get up from a chair without assistance, the examiner found that there were no signs or symptoms attributable to muscle injuries. It is unclear whether the examiner conducted muscle strength testing. The portion of the report regarding evaluation of muscle strength in the different muscle groups, was not completed. However, the examiner did indicate that there was no muscle atrophy. The June 2017 VA examiner also noted that the Veteran’s (non-service connected) back condition may be causing the Veteran to have difficulty getting up from a chair. Because it is unclear that any muscle strength testing was completed regarding the buttocks, and the June 2017 VA opinion was rendered without the benefit of review of potentially favorable new evidence received in November 2018, another VA examination is required. Regarding the loss of use of the Veteran’s feet, the June 2017 VA examiner opined that there was no foot diagnosis and therefore no connection could be made to service. This opinion was not responsive to the Board’s question as to whether it was at least as likely as not that the Veteran’s reported numbness in the feet was due to his service-connected disability, which includes peripheral neuropathy. Moreover, the June 2017 VA opinion was rendered without the benefit of review the November 2018 private opinion which linked both the Veteran’s loss of use of buttocks and loss of use of feet to his peripheral neuropathy. The November 2018 private opinion explained that peripheral neuropathy with widespread involvement would involve significant damage to the nerves in the thoracic and lumbosacral distribution with associated loss of function and sensation. The November 2018 private physician also opined that the Veteran likely had significant muscle atrophy due to the peripheral neuropathy. However, the private opinion was based on review of the record and not a physical evaluation. Thus, it is unclear how the examiner determined that the Veteran had muscle atrophy. Additionally, it is not clear that the private examiner was aware of the Veteran’s nonservice-connected bilateral hip and knee disabilities. As discussed in the February 2016 Board remand, the Board sought a medical opinion to determine whether the Veteran’s reported loss of use symptoms were due to service-connected disability, to include peripheral neuropathy, or other nonservice-connected disabilities of the hips and knees. For all these reasons, the Board is not able to reach a decision based on the evidence of record and another VA examination is necessary. While on remand, any outstanding treatment records should also be obtained and associated with the file. The matters are REMANDED for the following action: 1. Offer the Veteran the opportunity to provide any relevant, outstanding treatment records or opinions. 2. Afford the Veteran a VA examination to evaluate his reported loss of use of feet and buttocks. The claims file, to include a copy of this remand, must be reviewed by the examiner. Following a review of the claims file and any clinical testing, including muscle strength testing, the examiner should consider the November 2018 private opinion which finds that the Veteran suffers from loss of use of the feet and the buttocks. For each claimed loss of use, the examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent probability or more) that such loss of use, if present, is related to the Veteran’s service-connected disabilities, to include peripheral neuropathy. In reaching any conclusion, the examiner is asked to consider and address the November 2018 private opinion which explained that peripheral neuropathy with widespread involvement would involve significant damage to the nerves in the thoracic and lumbosacral distribution with associated loss of function and sensation. All opinions are to be accompanied by complete rationale. (Continued on Next Page) 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel