Citation Nr: 21069053 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-37 853 DATE: November 17, 2021 REMANDED An increased rating in excess of 40 percent from May 31, 2011 to August 14, 2011, from December 1, 2011 to April 14, 2013, and from August 1, 2013 until May 13, 2017 for lumbar spine fracture residuals is remanded. Entitlement to aid and attendance and/or other special monthly compensation is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1963 to November 1967. He passed away in May 2017. The Appellant is the surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter has previously been remanded by the Board for further development, most recently in April 2021. This matter is again before the Board. 1. An increased rating in excess of 40 percent from May 31, 2011 to August 14, 2011, from December 1, 2011 to April 14, 2013, and from August 1, 2013 until May 13, 2017 for lumbar spine fracture residuals is remanded. The Appellant believes that a higher rating for lumbar spine fracture residuals is warranted. The Board remanded the issue in April 2021 for an addendum opinion to state whether the Veteran had forward flexion limited to 30 degrees or less, favorable ankylosis, or unfavorable ankylosis at any time during the appeal period. A complete and fully explanatory rationale for any opinion offered was required. See April 2021 BVA Decision. The addendum opinion took place in June 2021. The addendum opinion found that the Veteran had absolutely no mobility in the entire lumbar spine during the entire appeal period, and as such, had ankylosis. Therefore, it was at least as likely as not that the Veteran had forward flexion limited to 30 degrees or less, favorable ankylosis, or unfavorable ankylosis during the appeal period. The addendum opinion then summarily concluded that the Veteran did have surgical ankylosis which was favorable throughout the appeal period. See June 2021 C&P Exam. The Board finds that its April 2021 remand instructions were not substantially complied with. Specifically, the addendum opinion did not provide a complete and fully explanatory rationale for its finding that the Veteran's ankylosis was only favorable throughout the entire appeal period. Specifically, although the addendum opinion found that the Veteran had ankylosis based on the evidence of record, it did not provide any rationale for the conclusion that it was only favorable ankylosis and not unfavorable ankylosis. Because of this, among other reasons, a remand is needed for a new addendum opinion. 2. Entitlement to aid and attendance and/or other special monthly compensation is remanded. A claim for increased disability compensation may include the inferred issue of entitlement to special monthly compensation, even where the veteran/appellant has not expressly placed entitlement to special monthly compensation at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Aid and attendance special monthly compensation is available if the veteran, as the result of service-connected disabilities, is permanently bedridden or so helpless as to require regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). The Board notes that special monthly compensation for the loss of use of the left foot was previously granted from May 2011 and that aid and attendance special monthly compensation was previously granted from October 2016. See August 2021 Rating Decision Codesheet. However, it is possible that additional and/or higher special monthly compensation may be warranted. See 38 U.S.C. § 1114; 38 C.F.R. § 3.350. For example, among other things, the record suggests that the Veteran may have needed aid and attendance due to service-connected disabilities other than for the loss of use of the left foot prior to October 2016. See November 2015 Statement in Support of Claim; November 2015 Buddy / Lay Statement; November 2015 Third Party Correspondence. The Board finds that there is currently insufficient medical evidence of record to make a proper determination on the issue. Therefore, a remand is needed for a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Schedule an appropriate retroactive VA addendum opinion for the Veteran's lumbar spine fracture residuals. Following a review of the claims file and a copy of this Remand, the reviewing medical professional is requested to furnish an opinion with respect to the following: (A) Is it at least as likely as not (a 50 percent or greater probability) that at any point during the appeal period (from May 31, 2011 until May 13, 2017) the Veteran had unfavorable ankylosis of the entire thoracolumbar spine? (This should include, but is not limited to, whether the Veteran would have had unfavorable ankylosis without the ameliorative effects of medication used to treat the disability). If yes, for which periods during the appeal period? Also, if yes, when did the Veteran first have unfavorable ankylosis of the entire thoracolumbar spine? In addition to the other relevant evidence of record, the medical professional is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) A medical record from 2015 stating that the Veteran should have been rated at 50 percent for the spine. There was no motion below T12-L1 and there was abnormal alignment (the spine should have had a normal lordosis, but with the insertion of steel rods and screws, the lumbar vertebrae would not have the normal lordotic alignment). Further information is provided. See November 2015 Medical Treatment Record. (2) A lay report for why a 50 percent rating for the spine was warranted. See September 2015 VA Memo. (3) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the medical professional cannot provide an opinion without resorting to mere speculation, the medical professional should provide an explanation stating why. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the medical professional's medical knowledge. The Veteran and others were/are competent to attest to factual matters of which they had/have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or others, the medical professional should provide a fully reasoned explanation. 2. Schedule one or more appropriate retroactive VA medical opinions to determine the need for aid and attendance and/or other special monthly compensation due to the Veteran's service-connected disabilities. Following a review of the claims file and a copy of this Remand, the reviewing medical professional is requested to furnish an opinion with respect to the following: (A) At any point during the appeal period (from May 31, 2011 until May 13, 2017), had the Veteran been unable to dress or undress or had the Veteran been unable to keep ordinarily clean and presentable? (B) At any point during the appeal period, had the Veteran required frequent adjustment of any special prosthetic or orthopedic appliances, which by reason of service-connected disabilities, could not be done without aid? (C) At any point during the appeal period, had the Veteran been unable to feed himself through loss of coordination of upper extremities or through extreme weakness, or had the Veteran been unable to attend to the wants of nature? (D) At any point during the appeal period, had the Veteran had incapacity, physical or mental, that required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment? (E) At any point during the appeal period, had the Veteran had any disability or disabilities requiring him to remain in bed? If the answer is yes to any of the above, the medical professional is requested to furnish an opinion with respect to the following: (F) For each service-connected disability, is it at least as likely as not (a 50 percent or greater probability) that the service-connected disability alone caused any of the above? If yes, which of the above? The medical professional should also state which combinations of service-connected disabilities at least as likely as not (a 50 percent or greater probability) caused any of the above and list which of the above apply. (G) Is it at least as likely as not (a 50 percent or greater probability) that any suffered loss of use of a creative organ and/or suffered anatomical loss of a creative organ was a result of service-connected disability? If yes, provide a list of each loss of use of a creative organ and each anatomical loss of a creative organ and which service-connected disabilities caused them. The medical professional should also describe what the effective remaining function of the Veteran's lower right extremity and right foot (including balance, propulsion, etc.) and each upper extremity and each hand (including grasping, manipulation, etc.) was during the appeal period based upon the Veteran's service-connected disabilities. Based on these findings, for the lower right extremity, right foot, each upper extremity, and each hand, is it at least as likely as not (a 50 percent or greater probability) that no effective function remained other than that which would be equally well served by an amputation stump at the site of election below the knee or elbow with use of a suitable prosthetic appliance. If applicable, provide an opinion as to the periods of time during the appeal period (from May 31, 2011 until May 13, 2017) that each was ascertainable. In addition to the other relevant evidence of record, the medical professional is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) A record showing the Veteran's service-connected disabilities. See August 2021 Rating Decision Codesheet. (2) Medical records from 2014 showing two or more falls in the past year. The Veteran had a bad back and left foot drop. The Veteran had migraines twice a month lasting for one to two days, requiring him to withdraw from activities during those times. Medical records from 2016 showed falls in 2015 and 2016. The Veteran had balance problems. Further information is provided. See September 2021 CAPRI. (3) Medical records from 2016 showing that the removal of the Veteran's penis may have been due to a neurogenic bladder. See September 2021 CAPRI. (4) Medical records from 2012 showing two or more falls in the past year and muscle weakness. See January 2020 CAPRI. (5) Medical records from 2017 showing urethral cancer with a penectomy occurring in May 2016. Further information is provided. See May 2017 Medical Treatment Record; March 2017 CAPRI; March 2017 C&P Exam. (6) Medical records from 2016 showing the need for aid and attendance, including problems due to the back and problems due to the right lower extremity/foot. The Veteran could not stand for more than one minute without assistance due to leg weakness and back pain. He needed help getting to the bathroom, bathing, dressing, had mobility limitations, and had medication management by his spouse. There was severe burning pain and numbness in the left calf and foot and numbness in the right calf and foot which impaired ambulation, standing, and dressing. The Veteran could leave the house two to three times per week with assistance and needed an assistive device for locomotion. Further information is provided. See December 2016 VA 21-2680. (7) Medical records from 2016 showing bilateral lower extremity weakness. It was hard to stand or walk for very long. Even using a cane was difficult. Three to four weeks prior, there was a tight sensation in the hips which was followed by significantly increased weakness and loss of balance. There had been multiple falls. For the past two weeks, the feet had been crossing when walking due to weakness. There had been numbness in the feet for many months. The Veteran was advised to get a wheeled walker with a seat to maintain mobility and to prevent falls. He also could have considered a wheelchair for long distances or if he had progressive weakness. Further information is provided. See December 2016 Medical Treatment Record. (8) A 2012 lay report that the Veteran had to move because he was falling down the stairs due to foot dropping and left leg weakness. He had trouble lifting the left leg over the edge of the tub due to leg weakness and balance issues which caused several falls. He tripped easily. See November 2015 Statement in Support of Claim. (9) A 2012 lay report that the Veteran had difficulty walking, in part, due to the lower back. After the August 2011 surgery, the Veteran needed total care, so his spouse quit her job to care for him. The Veteran had problems lifting the left leg to get in or out of a car or the tub and had fallen because of it. He could not go for walks and could not stand for long. He could not stand at the sink to cook or do dishes. Further information is provided. Id. (10) A lay report that to get out of bed, the Veteran had to hold onto something or else he could not stand due to low back and leg pain. He fell down the stairs numerous times due to weakness and lack of function in the legs. He could only stand for a matter of minutes and could not drive for any length of time. See November 2015 Buddy/Lay Statement. (11) A 2011 lay report that the Veteran had difficulty walking and standing for any length of time. The Veteran had to crawl out of the car. He had severe limitations of movement. See November 2015 Statement in Support of Claim. (12) Medical records from 2014 showing the Veteran's report of problems with starting and finishing simple self-care and household tasks due to mental health problems. The Veteran required the aid of his spouse for most tasks. He reported that the symptoms had been equally bad since January 2011. An examination found slowed and inefficient thought processes; low energy; forgetfulness; limited insight; continuous depression affecting the ability to function independently, appropriately, and effectively; no ability to adapt to stressful circumstances; social withdrawal; and only being able to maintain an effective relationship with his spouse. Further information is provided. See November 2015 Medical Treatment Record. (13) Medical records from 2012 showing loss of bowel and bladder control as well as the development of erectile dysfunction. The Veteran's back pain, leg weakness, and foot drop got so bad that he was unable to balance on the left foot. His spouse had to quit her job to be his caretaker. He had to move to a single-story house because he was unable to ascend stairs. Medical records from 2014 showed that he was dependent on his spouse for help with activities of daily living. Id. (14) The Veteran's report that in 2014, he had problems gripping, grasping, and opening jars due to the left hand. A doctor said that the severity of the left shoulder had been the same since 2012. See November 2015 Third Party Correspondence. (15) The Veteran's 2012 report of being unable to balance on either foot, and being unable to push off with them. They were exceedingly weak. The feet had a lack of motion and numbness. The left shoulder severely restricted his ability to use it and the problem had extended down into the left hand. See May 2012 Statement in Support of Claim. (16) A lay report from 2012 that the Veteran's gait was affected by leg weakness and foot dropping. He tripped easily and stumbled due to his foot dropping and the effect on his balance. See April 2012 Statement in Support of Claim. (17) A lay report from 2012 showing that the Veteran needed help around the house because of back problems. He had fallen out of the shower a number of times because he could not lift his left leg over the tub edge. He had balance problems. See January 2012 Statement in Support of Claim. (18) A medical record from 2011 showing weekly back flare-ups which lasted for hours. The Veteran could not do anything during them. The Veteran was unable to walk for more than a few yards. There was lumbar flattening. The back problems were enough to be responsible for abnormal gait or abnormal spinal contour. Further information is provided. See August 2011 VA Examination. (19) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the medical professional cannot provide an opinion without resorting to mere speculation, the medical professional should provide an explanation stating why. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the medical professional's medical knowledge. The Veteran and others were/are competent to attest to factual matters of which they had/have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or others, the medical professional should provide a fully reasoned explanation. 3. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.