Citation Nr: 25007014 Decision Date: 05/22/25 Archive Date: 05/22/25 DOCKET NO. 11-16 283 DATE: May 22, 2025 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or on housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1972 to October 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veterans Affairs Regional Office (RO). The TDIU claim was remanded by the Board in January 2014 and July 2019. In March 2021, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. Thereafter, the Board remanded this claim in December 2021 to obtain Social Security Administration (SSA) records. The TDIU claim was further remanded in May 2022 to obtain a lumbar spine examination. In November 2022, the Board remanded this matter for referral of extraschedular TDIU to the Director of Compensation. The Board denied the TDIU claim on appeal in a January 2024 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2024 Order, the Court vacated the Board's decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board erred by not reconciling findings with certain evidence. The JMR further determined that the Board erred by not addressing whether entitlement to SMC had been reasonably raised by the record. 1. Entitlement to a TDIU, to include on an extraschedular basis. 2. Entitlement to SMC based on the need for aid and attendance or on housebound status. During the most recent July 2022 VA lumbar spine examination, the Veteran reported requiring assistance due to his lumbar spine disability, including assistance with bathing, ambulation, and preparing meals. The lumbar spine was not manifested by muscle spasms and a straight leg raising test was negative. Evidence added to the claims file following the July 2022 examination includes a January 2023 VA medical record noting continued back pain and that muscle spasms limited activity. The Veteran was currently in a wheelchair, and he reported having trouble getting into his bathtub and that he utilized a shower chair. Symptoms included lumbar pain with palpation with pain radiating to his buttocks, and pain elicited by a bilateral leg raise test. Another January 2023 record shows that the Veteran and his son had inquired about VA's Program of Comprehensive Assistance for Family Caregivers (PCAFC) in order for his son to qualify for financial assistance for taking care of him. He further inquired about assistance with renovating his bathtub due to difficulty getting in and out. They were informed about caregiver support, Home Health Agency (HHA) services, and a Home Improvements/Structural Alterations (HISA) grant, although they declined information at that time. In consideration that the evidence shows that the Veteran reported requiring assistance with daily activities due to his service-connected lumbar spine disability, including bathing and meal preparation, the Board finds that entitlement to SMC has been raised by the record. When entitlement to SMC is raised during the course of an appeal seeking an increased rating, such as here, the claim for SMC is considered part and parcel of the increased rating claim. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) A review of the claims file further shows that the Veteran receives his medical treatment through his VA medical center. However, the most recent medical record associated with the claims file is dated July 2023. As these records show continued treatment related to his lumbar spine, and in consideration that there exists an almost two year gap since his treatment records were last associated with the claims file, in order to properly adjudicate these issues on appeal a remand is warranted to obtain updated VA medical records. In addition, the medical evidence shows that the Veteran's lumbar spine symptoms may have worsened since his most recent July 2022 VA examination. In this regard, at the time of his last examination, his lumbar spine was not manifested by muscle spasm and a bilateral leg raising test was negative. However, one year following this examination, VA medical records suggest that his lumbar spine disability was manifested by muscle spasms which limited his activities, and a bilateral leg raising test was positive. The Board further notes that pursuant to the July 2022 VA examination, a straight leg raising test is positive when pain radiates below the knee. Accordingly, more recent treatment records indicate possible radicular symptoms associated with the service-connected lumbar spine disability. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). As medical records added to the claims file evidence that his condition might had worsened, a remand is additionally warranted for a new VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Develop the claim for SMC based on the need for aid and attendance or housebound status. 2. With any necessary identification of sources by the Veteran, request all VA and private treatment records not already associated with the file, including VA medical records dated since July 2023. 3. Then, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected lumbar spine disability, to include whether the disability is manifested by radiculopathy or other neurological symptoms. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Then, the AOJ must readjudicate the remaining issues on appeal. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lamb, Christopher 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.