Citation Nr: 21074219 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-36 221 DATE: December 14, 2021 REMANDED 1. Entitlement to an evaluation in excess of 20 percent for a lumbar spine disorder with intervertebral disc syndrome (IVDS) prior to September 30, 2021, and in excess of 40 percent thereafter, is remanded. 2. Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1996 to January 1997. This matter comes to the Board of Veterans Appeals (Board) from an appeal of a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The Board previously remanded this case for additional development in December 2018. In December 2019, the Board issued a decision denying the Veteran's claim for an evaluation in excess of 20 percent for service-connected degenerative arthritis of the lumbar spine with IVDS. The Veteran appealed the December 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 Joint Motion for Partial Remand (JMPR), the December 2019 Board decision was partially vacated, and the matter was remanded back to the Board for readjudication consistent with the terms of the JMPR. The Court found that the Board erred in its adjudication of the Veteran's claim for an increased evaluation for his lumbar strain and further found that the evidence of record was sufficient to have raised for consideration the question of whether the Veteran was entitled to SMC based on aid and attendance. Accordingly, in June 2021, the Board the remanded the matter to the RO with direction to develop a claim for SMC based on aid and attendance, in addition to the increased rating claim for lumbar strain. In October 2021, the RO issued a rating decision and supplemental statement of the case (SSOC) granting an increase of the evaluation of lumbar strain to 40 percent disabling from September 30, 2021. Likewise, in the same October 2021 rating decision, the RO denied the claim for SMC based on aid and attendance. However, the RO did not include the claim for SMC in the October 2021 SSOC. A Veteran is presumed to be seeking the maximum benefit allowed by law or regulation, and such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). A claim for increased disability compensation may include the "inferred issue" of entitlement to SMC even where the Veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). As the denial of SMC in the October 2021 rating decision granted less than the maximum benefit sought, the RO was required to issue a SSOC in this matter. See 38 C.F.R. § 19.31. An SSOC in this matter was not issued. Therefore, a remand is required for the RO to issue a SSOC with respect to the claim for SMC based on aid and attendance. Additionally, pursuant to the Board's June 2021 remand, the RO was specifically directed to describe the severity of the Veteran's lumbar spine disability without consideration of the ameliorative effects of medications the Veteran takes to treat this disability. This directive was further qualified that if any requested findings were not possible to obtain or estimate, without resorting to mere speculation, then the examiner must explain why with a full supporting rationale. However, while the September 2021 VA examiner provided an extensive narrative of the Veteran's medical history, to include his medications, the examiner did not offer any discussion or insight as to the ameliorative effects of these medications on his lumbar spine disability. Nor did the examiner provide any explanation as to whether these findings were not possible to obtain or estimate. Therefore, the Board finds that the September 2021 VA examination fails to substantially comply with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Accordingly, to ensure compliance with the June 2021 remand directives, and to ensure that any decision rendered in the Veteran's appeal is based on sufficient evidence, the Board finds that a VA medical opinion must be obtained to address the Veteran's contention that his prescribed medications impact his range of motion abilities during testing. On remand, the RO should also obtain any outstanding VA treatment records. Additionally, the Veteran should be provided the opportunity to identify any private treatment records that are relevant to his appeal. The matters are REMANDED for the following action: 1.Return the claims file to the examiner who conducted the September 2021 examination, if available. The claims file must be reviewed by the examiner. If the original examiner is not available, the claims file should be forwarded to a reviewer of similar or greater qualifications. If a new examination is deemed necessary to respond to the question posed, one should be scheduled. The examiner should answer the following: Does the Veteran have any further functional loss due to prescription medication he takes for his lumbar spine pain? The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also reconcile all prior reports, as necessary. 2. Upon readjudication of the claim for an increased rating for the lumbar spine disorder, and following all further development indicated, readjudicate the claim for SMC based on aid and attendance, considering that determination and what is added from any further development, and issue a SSOC if the entire benefit sought on appeal is not granted. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.