Citation Nr: 21002669 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-07 840 vDATE: January 14, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for degenerative arthritis of the lumbar spine prior to October 13, 2014 is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person (A&A) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from March 1981 to March 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Veteran was first granted service connection for degenerative arthritis of the lumbar spine in the October 2014 rating decision on appeal. The RO assigned a disability rating of 10 percent, effective July 28, 2011, and a 40 percent disability rating from October 14, 2014 onward. The Veteran thereafter filed a timely notice of disagreement (NOD) and contended that he is entitled to a higher initial disability rating for his back condition. The Veteran subsequently appealed this matter to the Board. In September 2018, the claim came before the Board and the Veteran was granted an increased disability rating of 20 percent, and no higher, prior to October 14, 2014 but denied a rating in excess of 40 percent for the period since October 14, 2014. As a result, the Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court), which issued a memorandum decision in April 2020 vacating the Board’s September 2018 denial and remanding the claims to the Board for re-adjudication. As a preliminary matter, the Board notes that the Veteran seeks special monthly compensation (SMC) based on the need for regular aid and assistance. He has asserted that he requires the regular aid and attendance of another person due to his service-connected disabilities, including his degenerative arthritis of the lumbar spine. The Board finds that this claim is part and parcel of the increased rating claim for the Veteran’s lumbar spine disability and are therefore before the Board. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); Akles v. Derwinski, 1 Vet. App. 118 (1991). 1. Entitlement to an initial disability rating for degenerative arthritis of the lumbar spine in excess of 20 percent prior to October 13, 2014 is remanded. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia interprets 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. In its April 2020 memorandum decision, the Court determined that the September 2011 VA examiner’s opinion regarding the severity and symptoms of the Veteran’s lumbar spine disability is deficient and does not comport with later findings made by the VA. Specifically, the September 2011 VA examination and accompanying opinion did not comply with the requirement mentioned above, in 38 C.F.R. § 4.59, to include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-baring. Further, the September 2011 VA examiner did not provide an explanation as to why such testing was not (or could not) be performed at the time of the examination. However, the Board found this examination to have sufficient probative value despite these deficiencies, and it became part of the Board’s reasons and bases for the denial of the Veteran’s claims. In the April 2020 Court decision, the Court determined that the Board’s statement of reasons and bases were therefore inadequate. Further, the October 2014 VA examination and October 2016 VA examination of record are also not compliant with 38 C.F.R. § 4.59 and the Court’s decision in Correia. A review of the claims file reveals that the previous VA examination reports do not specify whether the results are weight-bearing or non-weight-bearing; nor do they include joint testing in passive motion. As the previous VA examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the current increased rating claim. In addition, the VA examiner should, if reasonably possible, provide a retrospective opinion as to the September 2011, October 2014, and October 2016 findings. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person (A&A) is remanded. As explained above, entitlement to SMC based on the need for aid and attendance is under the Board's jurisdiction as part of the increased rating claim for the Veteran’s current service-connected lumbar spine disability that is on appeal. The Veteran first raised the issue of entitlement to SMC based on the need for regular aid and attendance in his October 2020 appellate brief. See October 30, 2020 third party correspondence. The Veteran’s representative argues in the brief that per an affidavit of record from the Veteran, prior to October 2014 the Veteran would experience flare-ups and severe limitation of his range of motion as a result of his lumbar spine disability. As such, his spouse would be required to assist him in dressing (putting on his underwear, socks, pants, and shoes) in the morning because of the severity of the pain. The Veteran’s spouse also provided a lay statement corroborating her assistance of the Veteran. See October 30, 2020 buddy lay statement. The Veteran’s spouse stated “[I] would assist him regularly… with simple tasks while getting dressed, such as folding his collar down, putting his shoes on, and tying them.” In order to determine whether the Veteran is entitled to SMC based on the need for regular aid and attendance, the Veteran must be provided the proper notice and a VA aid and attendance examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected lumbar spine disability. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand, must be sent to the examiner for review. (a) Range of motion testing, in degrees, should be performed. In reporting the results of range of motion testing, the VA examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, in compliance with 38 C.F.R. § 4.59 and Correia v. McDonald. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the VA examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. (c) The examiner should inquire as to periods of flare- up and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (d) Lastly, the examiner should also review the VA examination reports from September 2011, October 2014, and October 2016, and, if reasonably feasible, provide a retrospective opinion regarding the extent of the Veteran's disability at those times in terms of passive, active, weightbearing, and non-weight-bearing range of motions as well as estimating the functional loss due to any reported flare-ups at those times. If the examiner is unable to render an opinion, he or she should clearly explain why that is so. 2. Send the Veteran appropriate notice of the evidence needed to substantiate a claim for SMC based on the need for regular aid and attendance. 3. Schedule the Veteran for a VA examination regarding his claim that he requires the regular aid and attendance of another person due to his service-connected disabilities. (a). Upon examination and review of the record, the examiner should provide an opinion as to whether the Veteran's service-connected disabilities render him helpless, or so nearly helpless, as to require the regular aid and attendance of another person to perform activities of daily living (e.g., the ability to dress/undress, keep ordinarily clean/presentable; frequent adjustment of special prosthetic/orthopedic appliances requiring the aid of another; is able to feed himself; can attend to the wants of nature; or requires assistance on a regular basis to protect himself from hazards/dangers incident to his daily environment). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.