Citation Nr: 21029512 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 12-11 755 DATE: May 13, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for psoriasis is remanded. Entitlement to a rating in excess of 40 percent for lumbar spine myositis is remanded. Entitlement to a separate rating for bilateral lower extremity radiculopathy is remanded. Entitlement to special monthly compensation (SMC) for anatomical loss or loss of use of one or more creative organs is remanded. Entitlement to SMC based on the need for regular aid and attendance is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 19, 2012, is remanded. Entitlement to Dependents' Educational Assistance (DEA) benefits prior to November 19, 2012, is remanded. REASONS FOR REMAND The Veteran had active service from February 1976 to May 1977. In April 2013, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. The issues discussed at the hearing were entitlement to a higher rating for the service-connected lumbar spine disability, entitlement to service connection for a skin disorder, and entitlement to a TDIU. A transcript of the hearing is of record. A March 2018 letter informed the Veteran that the judge who conducted the April 2013 hearing is no longer employed at the Board, and provided him an opportunity to have another hearing before a different Veterans Law Judge. The letter also informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume that he does not want another hearing and would proceed accordingly. The Veteran has not responded to the letter or otherwise indicated that he would like another Board hearing. In addition, more than 30 days have elapsed from the date of the March 2018 letter. In October 2020, the Veteran was sent a letter erroneously informing him that he had a pending request for an in-person Travel Board hearing. The letter invited him to consider having a virtual tele-hearing in lieu of that Travel Board hearing. Later in October 2020, the Board issued a memorandum clarifying that the letter was issued in error, as the Veteran's requested hearing had already been conducted. The memorandum states that the appeal would be adjudicated based on the hearing transcript and other evidence of record. The Veteran has not indicated that he would like another Board hearing. Therefore, the Board will proceed with appellate consideration. The issues of entitlement to a TDIU and DEA benefits prior to November 19, 2012, were previously remanded by the Board in October 2019 and September 2020. In September 2018, the Board issued a decision denying entitlement to a rating in excess of 40 percent for lumbar spine myositis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019 the Court vacated the September 2018 Board decision and remanded the issue for further consideration consistent with an August 2019 Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and the VA Secretary. In February 2020 and November 2020, the Board remanded that issue and the issues of entitlement to a separate rating for bilateral lower extremities radiculopathy, entitlement to SMC based on the anatomical loss or loss of use of one or more creative organs, and entitlement to SMC based on the need for regular aid and attendance for actions consistent with the August 2019 JMPR. The November 2020 Board remand also remanded the issue of entitlement to an initial rating in excess of 10 percent for psoriasis. 1. Entitlement to an initial rating in excess of 10 percent for psoriasis is remanded. 2. Entitlement to a rating in excess of 40 percent for lumbar spine myositis is remanded. 3. Entitlement to a separate rating for bilateral lower extremity radiculopathy is remanded. 4. Entitlement to SMC for anatomical loss or loss of use of one or more creative organ is remanded. 5. Entitlement to SMC based on the need for regular aid and attendance is remanded. The Board remanded these issues in November 2020. Although the Agency of Original Jurisdiction (AOJ) has completed some of the relevant actions directed in that remand, it did not complete all of those actions or readjudicate the appeal prior to the appeal being reactivated at the Board. The Board finds that the issues must be remanded so that the remaining actions directed in the November 2020 Board remand may be completed. 6. Entitlement to a TDIU prior to November 19, 2012, is remanded. 7. Entitlement to DEA benefits prior to November 19, 2012, is remanded. The issue of entitlement to separate ratings for bilateral lower extremity radiculopathy was raised as part of the claim for an increased rating for lumbar spine myositis and therefore may result in the awarding of additional ratings for disabilities that affected the Veteran's ability to secure or follow a substantially gainful occupation during the relevant period prior to November 19, 2012. In addition, the decision as to the increased ratings issues being remanded may result in a higher schedular rating, to include a 100 percent rating, during the relevant period prior to November 19, 2012. Therefore, a decision as to those issues could significantly impact a decision on the issues of entitlement to a TDIU and DEA benefits prior to November 19, 2012, and the issues are inextricably intertwined. A remand of the claims for entitlement to a TDIU prior to November 19, 2012, and entitlement to DEA benefits prior to November 19, 2012, is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to assess the current severity of his lumbar spine myositis and any associated neurologic complications. (a.) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and repeated use over time, as well as the degree of functional loss during flare-ups and repeated use over time. (b.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, repeated use over time, symptoms, or functional impairment 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). (c.) As to potential neurological complications, the VA examiner should identify all bilateral lower extremity neurologic disabilities present. Then, the examiner is asked to respond to the following inquiries: 1. Is it at least as likely as not (50 percent probability or greater) that the Veteran has bilateral lower extremity radiculopathy caused or aggravated by his service-connected lumbar spine myositis? 2. Is it at least as likely as not that the Veteran's bilateral lower extremity neuropathy is caused or aggravated by his service-connected lumbar spine myositis, to include bilateral neural foramina narrowing? 3. Is it at least as likely as not that the Veteran has loss of use of one or more creative organs caused or aggravated by his service-connected lumbar spine myositis? It is in the examiner's discretion to determine whether a nerve conduction study is necessary to answer questions 1 and 2 above. If such a study is not necessary, the examiner must explain the reasoning behind that determination. In answering the above questions, the examiner must consider the medical articles submitted by the Veteran and his representative. (d.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected lumbar spine disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. 2. Schedule the Veteran for a VA skin examination to assess the severity of his psoriasis. The examiner is asked to: (a.) Obtain a detailed lay history, including onset and progression of symptomatology, as well as any flare-ups or treatments thereof. (b.) Opine as to whether the treatment for the Veteran's psoriasis constituted systematic therapy by: 1. affecting the body as a whole in treating his psoriasis, even if it is not applied to the entire body (for example, a topical treatment may affect the entire body if it circulates through the bloodstream); AND 2. whether the given treatment is "like or similar to" a corticosteroid or other immunosuppressive drug. (c.) In formulating this opinion, the VA examiner is specifically instructed to address: 1. The Veteran's medical records, which indicate prescriptions for antibiotics; and, 2. The December 2019 VA examination, which noted the use of several medications on a constant or near constant basis. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material used. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. 3. Schedule the Veteran for a VA aid and attendance examination. The examiner should address whether the Veteran's service-connected disabilities result in functional loss (physical or mental) requiring the regular aid and attendance of another person to assist with activities of daily living such as dressing and undressing; keeping himself ordinarily clean and presentable; feeding; attending to the wants of nature; frequently adjusting of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; or protecting him from hazards or dangers incident to his daily environment. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate, corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to a TDIU prior to November 19, 2012, and entitlement to DEA benefits prior to November 19, 2012. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.