Citation Nr: 21030653 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 09-24 356 DATE: May 19, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on the loss of use of both lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1963 to July 1965 and from April 1966 to April 1987. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran's representative raised the issue of SMC based on the loss of use of both extremities as part and parcel of a claim for an increased rating for the Veteran's bilateral lower extremity peripheral neuropathy. The matter was previously before the Board in April 2018. At that time, the Board denied entitlement to SMC based on the loss of use of both lower extremities. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Veteran's representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion for Remand (Joint Motion) requesting that the Court vacate the Board's decision and remand the matter for readjudication in compliance with the directives specified. The Court issued an order in October 2018 granting the Joint Motion and returned the case to the Board. In May 2019, the Board remanded the case for further development. Thereafter, the case was returned to the Board for appellate review. In a January 2020 decision, the Board again denied entitlement to SMC based on the loss of use of both lower extremities. The Veteran appealed the decision to the Court. In September 2020, the Veteran's representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the matter for readjudication in compliance with the directives specified. The Court issued an order in September 2020 granting the Joint Motion and returned the case to the Board. 1. Entitlement to SMC on account of loss of use of both lower extremities is remanded. In the September 2020 Joint Motion, the parties agreed that the Board failed to discuss whether there was substantial compliance with previous remand directives from May 2019. In the May 2019 remand, the Board directed that the Agency of Original Jurisdiction (AOJ) provide the Veteran with a new examination because the previous VA opinions "focused primarily on whether amputation was warranted rather than whether the Veteran had effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. See September 2020 Joint Motion, p. 2. In the May 2019 remand, the Board also requested that the examiner "attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups." Id. In August 2019, the Veteran underwent a VA examination to assess the severity of his bilateral lower extremity peripheral neuropathy. In the September 2020 Joint Motion, the parties agreed that the August 2019 VA examiner's opinion that amputation would increase the Veteran's disability "paralleled the previous VA opinions that the Board had found inadequate" and that the VA examiner did not address the Veteran's flare-ups. Id. Therefore, the Board finds that remand is necessary to obtain an additional VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral lower extremity peripheral neuropathy. 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. The examiner must specifically comment as to whether the Veteran has lost the use of either of his lower extremities and must apply the criteria outlined in 38 C.F.R. § 4.63. The examiner must also address the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (Continued on the next page) In addition, the examiner should specifically comment on the March 2021 independent medical evaluation submitted in support of the claim and associated with the record in May 2021. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups or symptoms 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. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.