Citation Nr: A21017239 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 210526-161571 DATE: October 25, 2021 REMANDED Entitlement to an increased rating for right upper extremity weakness, residual of stroke (RUE weakness), to include special monthly compensation (SMC) as result of loss of use, need for aid and attendance, and/or housebound status is remanded. INTRODUCTION The Veteran served on active duty in the United States Army from October 1957 to October 1960. He died in February 2017. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veteran Appeals (Board) on appeal from a May 24, 2021 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). At the outset, the Board finds an overview of the procedural history of the Appellant's claim is warranted. The Appellant was awarded accrued benefits for the Veteran's RUE weakness disability in a May 7, 2020 rating decision. On May 6, 2021, the Appellant filed a VA Form 20-0996, Decision Review Request, seeking Higher-Level Review (HLR) of the May 7, 2020 rating decision. The RO held a HLR informal conference on May 18, 2021. On May 20, 2021, the RO issued a deferred rating decision and a rating decision, however the RO did not send the Appellant notification of the May 20, 2021 rating decision. On May 20, 2021, the Appellant filed a VA Form 10182 (Decision Review Request: Board Appeal, Notice of Disagreement) appealing the May 20, 2021 decision(s). The Board finds the May 20, 2021 VA Form 10182 premature for the following reasons. First, the Court of Appeals for Veterans Claims has determined that a deferred rating decision does not constitute the necessary "adjudicative determination" from which a disagreement may be filed, and an AOJ's deferral of an issue is not a final decision. Shipley v. Shinseki 24 Vet. App. 458, 461-62 (2011). Accordingly, any appeal of the May 20, 2021 deferred rating decision is not within the Board's jurisdiction. Second, a decision of a VA rating agency is binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. See 38 C.F.R. § 3.104(a). The VA did not issue written notification of the May 20, 2021 rating decision. As such, the May 20, 2021 decision is not considered a binding decision and therefore is not an appealable decision. Notwithstanding the above, the RO issued a rating decision dated May 24, 2021 and sent a notification letter to the Appellant regarding this rating decision. On May 26, 2021, the Appellant submitted a VA Form 10182 appealing the May 24, 2021 rating decision. She selected the Direct Review lane under the Appeals Modernization Act (AMA). 38 C.F.R. § 19.2(d). Accordingly, the Board is limited to review of the evidence in the record up and until the date of notification of the May 24, 2021 rating decision. See 38 C.F.R. §§ 3.2601, 20.301. In the May 24, 2021 rating decision, the RO continued the evaluation of the Veteran's right upper extremity weakness, residual of stroke, at 40 percent disabling for the purpose of accrued benefits. Additionally, the RO noted a decision was still needed regarding the Veteran's claim for SMC received on January 24, 2012 and January 18, 2013. The Board acknowledges the Veteran's earlier claims for SMC; however, VA also has a well-established duty to maximize a claimant's benefits. See Bradley v. Peake, 22 Vet. App. 280 (2008). Under this duty to maximize benefits, SMC is to be awarded when a veteran becomes eligible without need for a separate claim. Id. REASONS FOR REMAND Under the AMA, the record on appeal may be developed further by a remand to the Agency of Original Jurisdiction (AOJ) when the AOJ has committed a pre-decisional duty to assist error. 38 C.F.R. §§ 3.159(c), 20.802(a). The error must have been committed prior to the issuance of the decision being reviewed. 38 U.S.C. § 5103A(g). When the Board identifies the error, unless the highest level of the benefit sought can be awarded, the Board must return the appeal to the AOJ with instructions to correct the error. 38 U.S.C. § 5103A(g). The Board notes the RO has not obtained a retrospective VA aid and attendance and housebound assessment to evaluate the functional impairments caused by the Veteran's service-connected disabilities. Additionally, there is no VA examination of record evaluating the severity of the Veteran's stroke, specifically his service-connected right upper extremity weakness. Based on the foregoing, the Board finds the RO has not satisfied VA's duty to assist the Appellant in this matter. As such, a remand is necessary. Accordingly, these matters are REMANDED for the following actions: 1. Obtain a retrospective opinion from a qualified examiner with sufficient expertise to address the severity of the Veteran's service-connected right upper extremity weakness, residual of stroke, disability. The opinion should address the severity of the disability throughout the appeal period until the Veteran's death in February 2017. The electronic records must be made available to and reviewed by the examiner. Ensure the examiner provides all information required for rating purposes. If possible, the examiner is asked to provide a retrospective opinion which identifies whether during the appeal period the Veteran's right upper extremity weakness disability would be best described as moderate incomplete paralysis, severe incomplete paralysis, or complete paralysis as defined under Diagnostic Code 8513. The examiner should consider all medical and lay evidence available in the record and provide an explanation which includes a discussion of the evidence in the record. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Next, the RO should obtain a retrospective VA aid and attendance and housebound examination by a qualified examiner with sufficient expertise to determine the severity of the Veteran's service-connected disabilities. The electronic records should be made available to and reviewed by the examiner. Ensure the examiner provides all information required for rating purposes. With respect to this examination, the examiner should solely focus on, and explain how, the Veteran's service-connected disabilities had an impact upon his ability to ambulate and tend to his activities of daily living. In this regard, the examiner should provide concrete examples of how the Veteran's service-connected disabilities alone affected his functional abilities, such as how long he could stand or sit, distance the Veteran could ambulate, etc. The examiner is asked to state whether the Veteran was so helpless as to require the regular assistance of another with activities of daily living as a result of his service-connected functional impairments. Further, the examiner is also asked to state whether the Veteran's service-connected functional impairments rendered him substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.