Citation Nr: 9921764 Decision Date: 08/03/99 Archive Date: 08/12/99 DOCKET NO. 96-38 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an increased ratings for extremity weakness and gastrointestinal motility dysfunction due to multiple sclerosis. 2. Entitlement to increased special monthly compensation. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel REMAND The veteran served on active duty from October 1982 to April 1993. In August 1994 the Wilmington, Delaware, Regional Office (RO) of the Department of Veterans Affairs (VA) granted the veteran's claim for a disability rating greater than 30 percent for his service-connected multiple sclerosis. The RO granted this claim by separately evaluating disabilities caused by multiple sclerosis. Specifically, the RO assigned a 20 percent disability rating for weakness in the major (left) upper extremity, a 20 percent disability rating for weakness in the minor (right) upper extremity, a 20 percent disability rating for weakness in the left lower extremity, a 20 percent disability rating for weakness in the right lower extremity, and a 10 percent disability rating for gastrointestinal motility dysfunction. The foregoing awards provided the veteran with a combined disability rating of 70 percent. The present matter comes before the Board of Veterans' Appeals (Board) following an October 1995 rating action by the RO that confirmed and continued the 70 percent combined rating. This matter also comes before the Board from a January 1997 RO decision that granted a 100 percent rating for loss of use of both lower extremities, and a 70 percent rating for left upper extremity weakness. The RO also found that the loss of use of both lower extremities and loss of use of the left upper extremity entitled the veteran to special monthly compensation at the intermediate rate between 38 U.S.C.A. § 1114(l) and 38 U.S.C.A. § 1114(m). Subsequently, by an April 1998 decision, the RO increased the veteran's special monthly compensation award. It appears that the rate set by the RO was the rate set forth at 38 U.S.C.A. § 1114(m). At this point it should be noted that the veteran's representative, in a January 1999 informal brief, raised the issues of clear and unmistakable error (CUE) in an August 1993 decision, entitlement to secondary service connection for loss of use of the buttocks, including consideration of entitlement to special monthly compensation on account of loss of use of the buttocks, and whether new and material evidence had been submitted to reopen a claim of secondary service connection for headaches. The Board finds that the claim for increased special monthly compensation is intertwined with the claim for increased special monthly compensation on account of loss of use of the buttocks. Therefore, this should be addressed in the RO's action on remand. The other issues are referred to the RO for appropriate development. The Board notes that controlling laws and regulations provide that, when pertinent evidence is submitted in a timely fashion to the Board, such evidence must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case unless the claimant or appointed representative waives such consideration. 38 C.F.R. §§ 19.37(a), 20.1304 (1998). In this regard, the Board received from the veteran's representative additional evidence in January 1999, which took the form of a medical opinion from Craig N. Bash, M.D. This report specifically discussed, among other things, the extent of the veteran's symptomatology due to his service- connected multiple sclerosis. Specifically, Dr. Bash opined that the veteran had neurological impairment in both his upper and lower extremities, had incomplete paralysis of both lower extremities due to a problem with the sciatic nerve, which problem equated to a loss of use of both lower extremities, and had severe incomplete paralysis of all radicular groups bilaterally. He also opined that the record on appeal showed that the veteran had loss of use of the buttocks. The Board finds that such evidence is pertinent to the issues on appeal. Therefore, because there has been no waiver of review by the RO, see § 20.1304, a remand is required. The veteran's representative, in the January 1999 informal brief, argued that the personal hearing previously provided to the veteran was inadequate. Therefore, on remand, the veteran should be contacted and asked if he desires a new personal hearing before a RO hearing officer or before a member of the Board. (A hearing before the Board was previously scheduled in January 1999, but was canceled at the request of the veteran.) Consequently, this case is REMANDED for the following actions: 1. The veteran should be allowed to further supplement the record on appeal. 38 C.F.R. § 3.159 (1998). The veteran should also be contacted and asked if he desires a hearing before a RO hearing officer or before a member of the Board. 2. The RO should undertake any additional development suggested by information contained in any newly received documents and thereafter re- adjudicate the veteran's claims, including consideration of whether the veteran experiences loss of use of the buttocks due to multiple sclerosis. If any benefit sought is denied, a supplemental statement of the case should be issued. The supplemental statement of the case should reflect consideration of the entire record, including evidence received since the February 1997 supplemental statement of the case was issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and appear at a hearing, if one is requested at the RO, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until he receives further notice. The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998).