Citation Nr: 21025825 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-51 699 DATE: April 29, 2021 ORDER The application to reopen a claim of entitlement to service connection for headaches is granted. The application to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a rating in excess of 20 percent for residuals of herniated nucleus pulposus (HNP) and laminectomy with degenerative disc changes of the lumbar spine is remanded. Entitlement to a rating in excess of 20 percent for lumbar radiculopathy into left lower extremity associated with residuals of HNP and laminectomy with degenerative disc changes of the lumbar spine is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy, right lower extremity associated with residuals of HNP and laminectomy with degenerative disc changes of the lumbar spine is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) is remanded. FINDINGS OF FACT 1. A July 1994 rating decision denied entitlement to service connection for headaches. The Veteran did not timely appeal the decision nor submit new and material evidence within one year of notification of the decision. 2. Evidence received since the July 1994 rating decision that denied service connection for headaches relates to a previously unestablished fact necessary to substantiate the claim. 3. An August 2007 rating decision denied entitlement to service connection for PTSD. The Veteran appealed the decision by filing a notice of disagreement in November 2007 and VA Form 9 in March 2008, but the appeal was withdrawn by a filing of February 2009. 4. Evidence received since the August 2007 rating decision that denied service connection for PTSD relates to a previously unestablished fact necessary to substantiate the claim. 5. The Veteran’s migraine headaches are an organic disease of the nervous system that manifested during service. 6. Contemporaneous reports by the Veteran and clinical notation in the service treatment records, as well as post-service medical opinion, corroborate the Veteran’s in-service stressors. 7. A medical opinion of record finds that in-service personal assaults on the Veteran more likely than not caused her PTSD. CONCLUSIONS OF LAW 1. The July 1994 rating decision that denied service connection for headaches is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the July 1994 rating decision that denied service connection for headaches is new and material, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The August 2007 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. Evidence received since the August 2007 rating decision that denied service connection for PTSD is new and material, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for a migraine headache disability are met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3.307, 3.309. 6. The criteria for service connection for posttraumatic stress disorder are met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to August 1993. This matter comes before the Board of Veterans’ Appeals on appeal from a rating decision of February 2015. In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran stated in a claim filed in November 2013, “Social Security has me disabled effective April 2004.” A review of the record does not reflect that the agency of original jurisdiction requested or obtained the Veteran’s records from the Social Security Administration (SSA). VA has a duty to acquire both an SSA decision and the supporting medical records that are pertinent. 38 U.S.C. § 5103A(b), (c)(3); 38 C.F.R. § 3.159(c)(1); see also Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). A remand is necessary to attempt to obtain these records, except to the extent that a sought benefit may be granted upon the current record without prejudice to the Veteran. 38 C.F.R. § 20.802(a); see also Bernard v. Brown, 4 Vet. App. 384 (1993). Requests to Reopen Claim Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception provides that VA shall reopen a disallowed claim if new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108. VA will generally presume the credibility of the evidence in determining whether it is new and material. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence has been submitted is low. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches. A rating decision of July 1994 denied service connection for headaches. The Veteran did not timely appeal the rating decision nor submit new and material evidence within one year of notification of the decision, which became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In November 2013, the Veteran filed a service connection claim for migraine headaches. A rating decision of February 2015 denied service connection for occipital neuralgia (also claimed as headaches). The Veteran filed a NOD in October 2015 and VA Form 9 in October 2017. The basis for the denial of service connection in July 1994 was that “headaches clearly preexisted entrance into military service.” New evidence has since been received. The Veteran competently testified before the Board in September 2020 that her “yes” answer as to headaches in the Report of Medical History at entry was a report only of a history of headaches and not a current disorder. She states that she was not bothered by headaches at entry or in the preceding year. This testimonial evidence was not of record at the time of the last final denial of the claim. Presumed to be credible for purposes of reopening, the new evidence is material to the claim, because it relates to a basis for the previous denial of the claim, namely that the Veteran had a headache disorder that clearly preexisted entrance into military service. Because new and material evidence has been received, the claim of entitlement to service connection for headaches will be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for PTSD. In October 2006, the Veteran filed a service-connection claim for PTSD, which was denied by a rating decision of August 2007. The Veteran filed a NOD in November 2007 and VA Form 9 in March 2008. By a filing of February 2009, however, she withdrew all pending appeals. The August 2007 rating decision thus became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In November 2013, the Veteran filed a service-connection claim for PTSD, which was denied by a rating decision of February 2015. The Veteran filed a NOD in October 2015 and VA Form 9 in October 2017. The basis of the service connection in August 2007 was a lack of credible evidence that the claimed in-service stressors occurred. There was also no medical opinion linking the Veteran’s current PTSD to the claimed in-service stressors. New evidence has been received since the August 2007 rating decision. A February 2009 letter of B. R., a nurse, states her opinion that the Veteran’s current PTSD symptoms are more likely than not related to the in-service stressors of military sexual trauma alleged by the Veteran. The latter evidence, which was not of record at the time of the last final denial of the claim, is presumed to be credible for purposes of reopening. The new evidence is material to the claim, because it relates to a basis for the previous denial of the claim, namely a lack of medical evidence that establishes a link between current symptoms and a claimed stressor. Because new and material evidence has been received, the claim of entitlement to service connection for PTSD will be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Board recognizes that a claim based on a liberalizing law is a new claim requiring no new and material evidence to reopen a previous, final denial that preceded the liberalizing law. See Sawyer v. Derwinski, 1 Vet. App. 130, 133 (1991). Here, VA’s amendment of the regulations concerning PTSD claims based on an alleged, in-service, personal assault was made effective in March 2002, which preceded the rating decision of August 2007. 67 Fed. Reg. 10330-10332 (March 7, 2002). Moreover, the new regulation was arguably not “liberalizing” for this purpose, because it merely relaxed the evidentiary standard for establishing the fact of an in-service stressor, without creating a new basis for service-connection entitlement. See Foreman v. Shulkin, 29 Vet. App. 146 (2018) (holding that the 2010 VA regulatory amendments as to the evidentiary standard for establishing an in-service stressor under 38 C.F.R. § 3.304(f)(3) based on a fear of hostile military or terrorist activity was not a liberalizing law for purposes of establishing the effective date of service connection). Service Connection In general, service connection will be granted for a current disability that resulted from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). For certain chronic diseases shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service-connected. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. For the listed chronic diseases, a showing of a continuity of symptomatology is an alternative method of establishing service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease will be service-connected. 38 C.F.R. § 3.310; see also, Wallin v. West, 11 Vet. App. 509, 512 (1998). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for headaches. By a claim filed in November 2013, the Veteran seeks service connection for migraine headaches. She has a current disorder. A December 2013 VA treatment record lists occipital neuralgia and migraine as active problems. A March 2015 record of Dr. P. O. indicates a medical assessment of migraine. The service treatment records (STRs), such as those of January 1980, May 1980, July 1980, and April 1984, document the Veteran’s competent report of headache pain. In January 1980, she was hospitalized partly due to headaches, with a diagnosis of “migraine symptomatology, stable.” The impression of an April 1984 STR was “typical tension headache.” A Navy Medical Board report of May 1988 notes “migraine headaches” in the Review of Systems section of the report. Following service, an April 1994 VA general medical examination diagnosed benign simple headaches. The impression of Dr. S. E. in private treatment record of May 2004 record was right occipital neuralgia, with notation of the Veteran’s report of daily headaches, including intermittent, sharp, stabbing pains that were exacerbated by any type of activity. The Veteran underwent a VA examination for neurological disorders in June 2005. The report noted the Veteran’s description of current, daily, headache pain, and the impression of the examiner was “history of right and left occipital neuralgia born pain.” No nexus opinion was offered. A VA treatment record of September 2006 lists occipital neuralgia and migraine as active problems. The Board takes notice that occipital frontal headache causes pain in the distribution of the occipital nerves due to pressure or trauma to the nerve. See Dorland’s Illustrated Medical Dictionary, 1281 (31st ed. 2007). Giving the Veteran the benefit of any reasonable doubt, the Board finds that she was not noted to have a current headache disorder on the entrance examination report of January 1979. That report found a normal neurological system, and the section for summarizing any defects and diagnoses was left blank by the physician. While the Veteran answered “yes” in the Report of Medical History as to any past or current frequent or severe headaches, she credibly testified before the Board in September 2020 that, at entry, she was reporting only a history of headaches and not a current disorder (“I don’t remember having a migraine [pre-service]. I was pretty much doing good.” This statement tends to be supported by the fact that the doctor noted at entry, in the section to elaborate on positive answers in the Report of Medical History, not frequent or severe headaches, but merely “mild headache about every 6 months.” Crucially, the examining physician determined upon examination that the Veteran’s neurological system was normal. A veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As an organic disease of the nervous system, migraine headaches will be considered to have been incurred in service if manifest to a degree of ten percent within one year of service. 38 U.S.C. § 112(a); 38 C.F.R. §§ 3.307, 3.309(a). The Veteran has a current diagnosis of migraine headaches, and migraines were diagnosed during service. The Veteran has also competently and credibly testified as to an onset of severe headaches during service, with recurrent symptoms to the present. In light of this evidence, and upon review of the entire record, the Board determines that service connection is warranted for migraine headaches as a listed chronic disease (organic disease of the nervous system) that manifested to a compensable degree during service. 4. Entitlement to service connection for PTSD. By a claim filed in November 2013, the Veteran seeks service connection for PTSD. The scope of the claim includes any acquired psychiatric disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD in conformance with the criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM); (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in- service stressor actually occurred. 38 C.F.R. §§ 3.304(f), 4.125; see also Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). VA treatment records of November 2012 and May 2013 diagnose “PTSD/MST.” With no compelling evidence to the contrary, the diagnoses are presumed to have been made in accordance with the DSM criteria. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). A March 2011 VA treatment record lists PTSD as an active problem. PTSD was also diagnosed in VA treatment records of February 2009, May 2007, November 2006, and September 2006. Although the most recent diagnosis of May 2013 PTSD diagnosis predates the Veteran’s service-connection claim of November 2013, the Board considers it to be sufficiently proximate to the filing of the claim so as to establish a current disability. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran is not a combat veteran and does not allege a stressor concerning combat with the enemy or a fear of hostile military or terrorist activity. In the hearing testimony and elsewhere in the record, she describes in-service stressors based on military sexual trauma (MST). One incident involves being ordered by a senior master chief and executive officer to wear a bikini, high heels, fur coat, and paper bag before an entire ship squadron at a Christmas Eve party in 1979 and then having the paper bag removed from her head to reveal her identity, resulting in her embarrassment and humiliation. She states that the administrative office and department head never treated her the same after the incident, that cartoons of her were then published in the squadron newspaper, and that she requested a transfer from the commanding officer’s office shortly thereafter. A second stressor involves being verbally harassed (such as cat calls), touched, and propositioned by gay, female fellow service members in the “day room” and shower of the barracks in 1979-1980. The behavior was unwanted by the Veteran and very upsetting. A third stressor relates to harassment by a fellow service member, M. O., in July 1980, which culminated in his grabbing her breasts and the Veteran injuring his neck with scissors to defend herself. A fourth alleged incident was unwanted grabbing, swinging around, and kissing of the Veteran (who also described this as an attempted rape) by the command master chief (CMC) in the Personnel Office at the Pentagon. The Veteran was in shock, screamed, and ran out of the room. She states that, although her division officer offered to proceed with charges if she wished to, she was too afraid to do so, upon consideration that the CMC was the second most powerful master chief in the Navy. Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran’s service records may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to, law enforcement and medical records and statements of family members. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavioral changes tending to credibly indicate the stressor include a military duty transfer request, work performance deterioration, substance abuse, unexplained economic or social behavior changes, episodes of depression, panic attacks, or anxiety without an identifiable cause, and other evidence of this type. For personal-assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. That is, a clinician can interpret the evidence of record to confirm the occurrence of in-service sexual assaults, personal trauma, and harassment. See Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011). For PTSD claims in general, corroboration of every detail of a claimed stressor is not required; rather, independent evidence of a stressful event may suffice to imply a veteran’s personal exposure. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)). VA cannot use the absence of service record documentation or a veteran’s failure to report in-service sexual assault to military authorities as evidence that a sexual assault did not occur. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). In the present case, although the STRs do not document the assaults described by the Veteran, there is sufficient corroborating evidence in the STRs to conclude that that MST events of 1979-1980 alleged by Veteran occurred. A service treatment record of July 1980 notes the Veteran’s report of the “aggravation heaped on her by her petty officer in charge.” A further July 1980 STR notes, “Patient again comes to clinic extremely frustrated at work. She broke down and cried about her current problem. She feels she is persistently taken advantage of at work by the 1st class over her. She continues to be bothered by tension headaches . . . and difficulty sleeping. She also has trouble swallowing food. Over past two weeks she has also been having nightmares.” The impression of the clinician was severe anxiety. It is also noted in a service treatment record of November 1980 that the Veteran, “as in previous entries, [is] having some difficulties coping with work situation [and] is very distraught today.” A February 2009 letter of B. R., a certified VA psychiatric mental health clinic nurse specialist, states her opinion that the Veteran’s current PTSD symptoms are more likely than not related to the in-service stressors of military sexual trauma that the Veteran alleges. The letter explained that Nurse B. R. had treated the Veteran since May 2007 for psychotherapy related to PTSD, and that the Veteran presented with complaints of depression and anxiety related to four incidents of sexual trauma or harassment early in the Veteran’s career in 1979-1980. The clinician specifically referenced the Christmas party incident of 1979, the sexual harassment by other females in the barracks in 1979-1980, and subsequent incidents of physical, emotional, and sexual abuse, including fondling, by her peers. In the clinician’s opinion, the military sexual trauma experienced by the Veteran has left her with a severe sense of shame and guilt. Nurse B. R. stated that the Veteran’s current difficulties with isolation, hypervigilance, difficulty sleeping, nightmares, crying spells, communication difficulties, easy startle response, and depression are more likely than not related to the experience of military sexual trauma with the resultant diagnosis of PTSD. The Veteran has been diagnosed with PTSD, and the Board finds her to be competent and credible in her report of in-service stressors of personal assault, which are sufficiently corroborated by information in the service treatment records. The fact that a treating health professional accepts that the personal assault stressors also serves as corroborating evidence in this case. The evidence weighs in favor of a finding that the alleged in-service personal assaults occurred as described by the Veteran, and it can reasonably be understood why the various unwanted touchings were not contemporaneously documented. As a layperson, the Veteran is competent to report her experienced symptoms but not to determine the etiology of a psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is competent and credible medical evidence of a link between the current symptoms and the claimed in-service stressors. In the opinion of B. R., a certified VA psychiatric mental health clinic nurse specialist, the Veteran’s PTSD was more likely than not caused by the specific personal assaults during service that are alleged. The medical opinion is adequately supported by a rationale. With all the elements of service connection for PTSD having been met, the Board determines that service connection is warranted. There is no contrary medical opinion of record. The Veteran did not appear for a VA examination for mental disorders that was scheduled for February 2015. She maintains that she lacked transportation to attend that examination at a location 100 miles from her home. She requests a new VA examination. Because entitlement to service connection can be granted on the current record without a VA examination, it is not necessary for the Board to determine whether the Veteran’s failure to report for the previously scheduled VA examination was for good cause. 38 C.F.R. § 3.655(a), (b). REASONS FOR REMAND 5. Entitlement to a rating in excess of 20 percent for residuals of HNP and laminectomy with degenerative disc changes, lumbar spine. 6. Entitlement to a rating in excess of 20 percent for lumbar radiculopathy into left lower extremity associated with residuals of HNP and laminectomy with degenerative disc changes, lumbar spine. 7. Entitlement to a rating in excess of 20 percent for radiculopathy, right lower extremity associated with residuals of HNP and laminectomy with degenerative disc changes, lumbar spine. A rating decision of July 1994 granted service connection for status post herniated nucleus pulposus (HNP), L4-5, with a lumbar laminectomy and mild degenerative disc changes. A 20-percent rating, effective August 12, 1993, was established. In November 2004, the Veteran filed a claim for rating increase. A rating decision of September 2005 continued the 20-percent rating for residuals of HNP and laminectomy with degenerative disc changes. Service connection for lumbar radiculopathy into left lower extremity was granted with an evaluation of 10 percent, effective November 15, 2004. In November 2007, the Veteran filed a claim for rating increase. A rating decision of February 2008 continued the 20-percent rating for residuals of HNP and laminectomy with degenerative disc changes. The rating for lumbar radiculopathy into left lower extremity was increased to 20 percent, effective November 7, 2007. In addition, service connection was granted for radiculopathy, right lower extremity, with an evaluation of 20 percent and an effective date of November 7, 2007. The Veteran did not appeal. In November 2013, the Veteran filed a claim for rating increase with respect to both the back disability and the associated radiculopathy. A rating decision of February 2015 continued the current ratings. The Veteran filed a NOD in October 2015 and VA From 9 in October 2017. The Veteran was last examined for her back and associated radiculopathy in January 2014. She testified before the board in September 2020 that her symptoms have worsened since that time. A remand is needed for a VA examiner to re- examine the Veteran for her back and radiculopathy, with consideration of experienced symptoms that may indicate a worsening in the severity of the disabilities. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). 8. Entitlement to a TDIU. A rating decision of February 2015 denied entitlement to a TDIU. The Veteran filed a NOD in October 2015 and VA From 9 in October 2017. The Board will remand the issue of entitlement to a TDIU as an aspect of the Veteran’s remanded claims of entitlement to increased ratings for her service-connected back disability and associated radiculopathy and of the initial ratings to be assigned for the service- connected PTSD and headache disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Harris v. Derwinski, 1 Vet. App. 180, 183. 9. Entitlement to SMC. Special monthly compensation (SMC) is available when, as the result of service- connected disability, a veteran suffers additional hardships above and beyond those contemplated by the rating schedule. 38 U.S.C. § 1114(k)-(s); see also Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011). SMC is payable if a veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). SMC is also payable by reason of being housebound, if a veteran has a single permanent disability rated 100-percent disabling and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of service- connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). A claimant is presumed to be seeking the maximum benefit allowed by law. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the issue of entitlement to SMC is an ancillary benefit that should be addressed by the Board when raised by the claimant or reasonably raised by the record, regardless of whether a formal claim is submitted pursuant to 38 C.F.R. § 3.155. See Payne v. Wilkie, 31 Vet. App. 373, 385-91 (2019). In her November 2013 claim, the Veteran stated that her service-connected back and radiculopathy disabilities had worsened and that she has “a difficult time at home just taking care of myself.” Thus, an inferred issue of entitlement to SMC is before the Board and will be remanded as an aspect of the other remanded claims. See Akles v. Derwinski, 1 Vet. App. 118 (1991). The matter is REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issues. All efforts to obtain such records should be documented in the claims file. 2. Undertake appropriate development to request complete copies of any Social Security Administration (SSA) determination as to disability benefit claim(s) of the Veteran before that agency, as well as the records, including medical records, considered in adjudicating the claim(s). All records/responses received should be associated with the claims file. If records are unavailable, SSA should so indicate. The Veteran and her representative are to be notified of any unsuccessful efforts in this regard, in order to give the Veteran an opportunity to obtain and submit those records for VA review. 3. Schedule the Veteran for an examination as to the severity of her service-connected disabilities of status post herniated nucleus pulposus (HNP), L4-5, with a lumbar laminectomy and mild degenerative disc changes, and radiculopathy of the left and right lower extremities. The examiner must fully describe the disabilities and report all signs and symptoms necessary for evaluating them under the rating criteria. The examiner must test, if possible, the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. Any additional functional impairment must be expressed in terms of the degree of additional loss of range of motion. If it is not possible to provide a specific measurement or opinion without speculation, to include with respect to use during flare-ups or with repeated use over time, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge or a deficiency in the record (additional facts are required). Notify the examiner that the mere fact that an examination is not occurring during a flare-up or after repeated use over time is an insufficient reason for not providing an estimate. It is also not sufficient to state merely that any information provided by the Veteran would be subjective and therefore of no value. (Continued on the next page)   To the extent possible, the examiner must discuss the effect of the Veteran’s back disability and associated radiculopathy on any occupational functioning and activities of daily living. 4. After completing the above action and any other necessary development, readjudicate the claims, including entitlement to a TDIU and SMC. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representative and the appeal returned to the Board for appellate review. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven D. Najarian, 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.