Citation Nr: 18157923 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-41 588 DATE: December 13, 2018 REMANDED Entitlement to a rating in excess of 20 percent for lumbar disc syndrome with radiculopathy of the left and right lower extremities is remanded. Entitlement to special monthly pension based on the need for aid and attendance or housebound status is remanded. Whether the Veteran's countable income is excessive for purposes of receiving VA non-service connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1951 to December 1952. This matter is on appeal before the Board of Veterans Appeals (Board) from July 2014 and October 2016 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). On his November 2016 and August 2017 Form 9s, the Veteran requested a Board hearing in relation to all the matters on appeal. A Board hearing was then scheduled to take place on March 7, 2018. However, in March 2018 correspondence, the Veteran’s representative indicated that the Veteran was cancelling the hearing and requested that a decision be made based on the evidence of record. Accordingly, the Veteran’s hearing request is deemed withdrawn. In an October 2013 rating decision, the RO denied service connection for left lower extremity radiculopathy. However, service connection for sciatic neuritis, left, was initially granted by a March 1955 rating decision. The decision indicates that the service-connected disability was manifested by lumbar spine pain radiating into the left leg and that a recent VA examination had revealed a mild sciatic neuritis (i.e. radiculopathy) on the left manifested by sensory changes only. A noncompensable, 0 percent rating was assigned effective October 7, 1954. In a subsequent May 1969 rating decision, the RO granted an increased, 10 percent rating for the Veteran’s lumbar spine disability, referring to it as lumbar disc syndrome with sciatic neuropathy (i.e. radiculopathy), right, manifested by sensory changes, and did not mention the service-connected left sciatic neuropathy. There is no indication that the RO severed service connection for left sciatic neuropathy, however. Moreover, after January 1, 1962, VA may not sever service connection for any disability that has been service connected for ten years or more unless the original grant was based on fraud or the military records clearly show the veteran lacked the requisite service or character of discharge. 38 U.S.C. § 1159. Neither of these situations is present in this case. Thus, as pointed out by the Veteran’s representative in his March 2018 brief, service connection for lower extremity neuritis (i.e. radiculopathy) had been in effect for more than 10 years as of May 1969 (and as of October 2013) and this award is protected from severance. Id. Consequently, the Board must consider the Veteran’s service-connected low back disability as including radiculopathy of both the left and right extremities, as indicated on page 1 above. Accordingly, on remand, the evaluation of the Veteran’s low back disability must include consideration of whether separate compensable ratings are warranted for left and/or right lower extremity radiculopathy. The issues of entitlement to a rating in excess of 20 percent for lumbar disc syndrome with radiculopathy of the right and left lower extremities; entitlement to special monthly pension based on the need for aid and attendance or housebound status; and whether the Veteran’s countable income is excessive for purposes of receiving VA non-service connected pension are remanded. Regarding the claim for an increase, the Veteran most recently received a VA examination to assess the current severity of his service-connected lumbar spine disability in July 2014. Subsequently, at a July 2017 VA medical visit, the Veteran reported that his back pain had gotten worse. The diagnostic impression was chronic low back pain with left lumbar radiculopathy and it was noted that the Veteran was using a walker at times. Given that there is evidence of worsening of the low back disability since the July 2014 VA examination, a remand is necessary to afford the Veteran a new VA examination to assess the current severity of his low back disability with radiculopathy. Regarding the claims concerning entitlement to non-service connected pension and special monthly pension, on his initial September 2016 claim for pension, the Veteran did not list his spouse, did not report his spouse’s income (if any), and did not report necessary information concerning his marriage history. Because of this, the AOJ sent the Veteran a letter in June 2017 requesting that he submit a declaration of status of dependents form (VA Form 21-686c) with his complete marital history. The AOJ also asked that the Veteran provide income and net worth information for both himself and his spouse and that he provide information concerning any unreimbursed medical expenses he had incurred from September 20, 2016 to December 31, 2016 and from January 1, 2017 through June 2017. Notably, the Veteran did not respond to the RO’s request for this information. However, given the request was made only once and given the Veteran’s advanced age, the Board finds it appropriate to allow him another opportunity to provide this information before a final decision on his claim is issued. Thus, on remand, the agency of original jurisdiction (AOJ) should issue another letter to the Veteran requesting this information. The Veteran is advised to consult his representative should he require assistance in providing the information requested by VA. Also, to the extent possible, the Veteran’s representative is asked to assist the Veteran in providing this information. Finally, the Board notes that the claims file contains VA medical records dated as up until July 2017. Consequently, on remand, the AOJ should ensure that any available VA medical records from July 2017 to the present are associated with the claims file, as such records are likely pertinent to the claims for increase for low back disability and for special monthly pension and are constructively of record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any records of VA treatment or evaluation of the Veteran dated from July 2017 to the present. 2. Make another request of the Veteran to provide appropriate information concerning his marital history, including his marriage to his current spouse. Also, ask the Veteran to provide appropriate net worth and income information for himself and his spouse. Additionally, ask the Veteran to report any unreimbursed i.e. (out of pocket) medical expenses incurred by himself and his spouse from September 2016 to the present. 3. After the development in #1 has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The claims file should be made available for review by the examiner in conjunction with the examination. The examiner should provide a full description of the lumbar spine disability and any associated impairment, to include radiculopathy of the left and/or right lower extremities, and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts); due to a deficiency in the record (additional facts are required); or due to the examiner not having the necessary knowledge or training. (Continued on the next page)   4. Readjudicate the claims. If any remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel