Citation Nr: 0634442 Decision Date: 11/07/06 Archive Date: 11/16/06 DOCKET NO. 94-29 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person, or because of being housebound. REPRESENTATION Appellant represented by: Robert V. Chisolm, Attorney ATTORNEY FOR THE BOARD M. Donovan, Associate Counsel INTRODUCTION The veteran served on active duty from January 1965 to February 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont, which, in pertinent part, denied entitlement to SMC because of the need for regular aid and attendance or being housebound. In January 2001 the Board remanded the claim, and claims for entitlement to service connection for hearing loss of the left ear and a low back disability for further development. In February 2001 the Board vacated the January 2001 remand due to irregularities and remanded the claims of entitlement to service connection for hearing loss of the left ear and a low back disability and entitlement to SMC for further development. In a June 2002 decision the Board denied entitlement to service connection for hearing loss of the left ear and a low back disability and entitlement to SMC. In February 2003 the Board denied a motion requesting reconsideration of the June 2002 Board decision. The veteran then appealed the June 2002 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2006 the Court affirmed that part of the June 2002 Board decision denying entitlement to service connection for hearing loss of the left ear and a low back disability and vacated that part of the June 2002 Board decision denying entitlement to SMC and remanded that issue to the Board. In September 1993 the veteran testified before a Veterans Law Judge sitting at the RO. A transcript of that hearing is of record. The Veterans Law Judge who conducted this hearing is no longer employed by the Board. Pursuant to 38 C.F.R. § 20.707 (2006), the Veterans Law Judge who conducts a hearing shall participate in making the final determination of the claim. An August 2006 letter informed the veteran that he had the opportunity to have another hearing, however, in a September 2006 response the veteran indicated that he did not desire another hearing. The Board notes that an October 2001 rating decision denied entitlement to service connection for erectile dysfunction with loss of use of a creative organ and hypertension. The veteran filed a timely notice of disagreement (NOD) with this decision and was issued a statement of the case (SOC) in December 2002, however he did not file a timely substantive appeal and the October 2001 rating decision became final. 38 C.F.R. §§ 19.32, 20.202, 20.302, 20.1103 (2006). In July 2003 the veteran requested that the denial of entitlement to service connection for erectile dysfunction and hypertension be reconsidered. The request to reopen claims of entitlement to service connection for erectile dysfunction and hypertension have not been adjudicated and are referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The February 2001 remand instructed that the veteran be afforded a VA aid and attendance examination, and that the examiner should review the claims file and provide opinions as to whether or not the veteran has a mental incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, whether or not the veteran is substantially confined to his house or immediate premises due to service- connected PTSD, and whether or the veteran is either helpless or so nearly helpless as to require the regular aid and attendance of another person due to PTSD. The veteran was afforded a VA examination in June 2001. He indicated that he rarely left home secondary to anxiety and felt that his world was quite restricted. He also reported that he had the regular aid and attendance of another person as his mother did the cooking for him because she was afraid he would leave the stove on, and that she had to remind him to take his medications and bathe. The veteran did report that he was independent in dressing, eating, ambulation, toileting, and hygiene. He reported leaving home and his immediate vicinity for medical appointments. The examiner noted that the veteran had not been hospitalized since 1991, was not permanently bedridden, and did not have problems with his eyes. The veteran reported that he was capable of managing his benefit payments in his own best interest and paid his own bills with his mother overseeing him. He indicated no major bouts of dizziness, bowel or bladder incontinence, or poor balance affecting the ability to ambulate, perform self-care, or travel beyond the premises of his home. The examiner opined that the frequency and under what circumstances the veteran was able to leave his home was significant in that he occasionally went out to eat with his mother and rode to the supermarket at least once a week, where he waited in the car to avoid crowds. He also occasionally drove to group therapy, and often carpooled with others. In the March 2006 decision, the Court found that the June 2001 VA examiner failed to discuss whether the veteran was "substantially confined" to his home and, therefore, the examination was inadequate. As such, remand for another VA examination is required. The Board notes that the veteran was awarded Social Security disability benefits for depression and PTSD in a January 1999 decision. While a copy of that decision and numerous Social Security Administration (SSA) records have been associated with the claims file, the transcript of a December 1998 hearing referred to in the January 1999 decision has not been associated with the claims file. The veteran has argued that this hearing transcript is pertinent to the claim of entitlement to SMC. VA is required to obtain the SSA records prior to deciding the veteran's claim. Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (pursuant to duty to assist, VA must seek to obtain all pertinent records, including SSA records, of which it is put on notice); Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). Thus, on remand, attempts should be made to associate a transcript of the December 1998 SSA hearing, and any other outstanding SSA records, with the claims file. Finally, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), the Court held that under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A March 2001 VCAA letter addressed the veteran's claim of entitlement to SMC on account of the need for aid and attendance, and informed the veteran that to substantiate his claim the evidence would need to show that he needed assistance with his activities of daily living due solely to service connected disabilities. This letter did not inform the claimant that he could demonstrate entitlement to SMC on the basis of being housebound. On remand, this notice deficiency should be remedied. Recently the Court has clarified that housebound benefits are payable where the pertinent disabilities cause the veteran to be substantially confined to the home or its immediate premises, and that this requirement is met when the veteran is unable to leave the home to earn a living. Hartness v. Nicholson, 20 Vet. App. 216 (2006). Accordingly, the case is REMANDED for the following action: 1. Send the veteran a VCAA notice letter in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), specifically informing him of the information and evidence required to substantiate his claim of entitlement to SMC based on the need for regular aid and attendance of another person, or because of being housebound 2. Take all necessary steps to obtain a copy of the December 1998 SSA hearing transcript referred to in the January 1999 decision and any other SSA records not previously associated with the claims file. 3. Schedule the veteran for a VA aid and attendance/housebound examination to determine whether his service connected disabilities render him housebound or unable to independently perform the daily functions of self-care on a regular basis. The examiner should review the claims file and note such review in the examination report or in an addendum. The examiner should opine whether, as a result of service connected disabilities, the veteran requires assistance on a regular basis to: dress or undress himself, or keep himself ordinarily clean and presentable; adjust frequently any special prosthetic or orthopedic appliances; feed himself through to loss of coordination of upper extremities or through extreme weakness; attend to the wants of nature; or to protect himself from the hazards or dangers incident to his daily environment. The examiner should also opine as to whether the veteran is substantially confined to his dwelling or the immediate premises as a direct result of his service connected disabilities, that is, do these disabilities cause him to be unable leave the house in order to earn an income. 4. After ensuring the above is complete, re-adjudicate the claim. If the claim remains denied, issue a supplemental statement of the case before returning the claim to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2006).