Citation Nr: 21020772 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-30 730 DATE: April 8, 2021 REMANDED Entitlement to an increased rating in excess of 30 percent for a right knee disability is remanded. Entitlement to an increased rating in excess of 50 percent for a lumbar spine disability is remanded. Entitlement to special monthly compensation (SMC) for aid and attendance or at the housebound rate is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1976 to January 1979. The Veteran died in December 2011, and his surviving spouse was substituted as the appellant in November 2018. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded in June 2019. There has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an increased rating in excess of 30 percent for a right knee disability is remanded. 2. Entitlement to an increased rating in excess of 50 percent for a lumbar spine disability is remanded. 3. Entitlement to special monthly compensation (SMC) for aid and attendance or at the housebound rate is remanded. A remand is needed to further develop the claims on appeal. Although prior to his passing the Veteran was scheduled for a VA examination in March 2011 for his back disability; he was not seen for examination. A March 2011 telephone conversation with the Veteran indicates that the examination was cancelled “due to incorrect jurisdiction.” The Veteran expressed a willingness to report for a new C&P exam. An April 2011 report of general information indicates that the Veteran contacted the RO for a status on his claims. When questioned about an earlier VA examination for February 2011, he reported that he “had not been contacted about the musculoskeletal exam in Montgomery.” A note was made to follow-up with VHA. The Veteran’s June 9, 2011 VA examination report indicates that the exam was cancelled; however, the Veteran reports in a June 14, 2011 VCAA Notice Acknowledgement that he had an exam at the Birmingham VAMC. A June 2011 VA Form 21-2507a indicates that the Veteran was scheduled to report to his musculoskeletal exam on June 30, 2011. However, it appears that these examinations were never administered. In October 2011 the Veteran called the RO to inquire about the status of his claims and seemingly reported that he “never received the appointment letters for the C&P exams that were requested.” A request to reschedule the Veteran’s examinations and mail a notification letter was noted in the report of general information; however, neither the request nor the notification is contained in the file. Thus, as the Veteran is now deceased, a retrospective opinion is needed to assess the severity of the Veteran’s right knee and lumbar spine disability. Regarding the issue of aid and attendance, an October 2014 rating decision awarded the Veteran service connection for epilepsy effective December 3, 2007. Although this disability was not service connected when the Veteran initially applied for aid and attendance, the effective date of grant implies that associated symptoms may have impacted his ability to perform activities of daily living. Thus, a retrospective opinion is needed to determine whether the severity of the Veteran’s epilepsy disability along with his service-connected right knee and lumbar spine disabilities warrant aid and attendance or resulted in his being housebound. The matters are REMANDED for the following action: 1. Obtain a retrospective opinion by an appropriate clinician to determine the severity of his service-connected total right knee replacement disability and lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner is asked to provide a retrospective opinion regarding the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. The examiner is also asked to offer a retrospective opinion regarding the impact, if any the Veteran’s service-connected right knee disability, back disability, and epilepsy had on his ability to perform activities of daily living. As the examiner is providing retrospective opinions, it is imperative that s/he review the claims files, particularly treatment records, the Veteran’s lay report of symptoms, and buddy statements. 3. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.