Citation Nr: 0811548 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-01 818 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to special monthly compensation based upon the need for regular aid and attendance or on account of being housebound. 2. Entitlement to special monthly compensation on account of a spouse who requires the regular aid and attendance of another person. REPRESENTATION Veteran represented by: Clark Evans, Attorney ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from January 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the RO in St. Louis, Missouri, which denied the veteran's claims for special monthly compensation (SMC) for himself and his wife based on the need for aid and attendance of another person. The Board granted service connection for the veteran's seizure disorder in March 2005. The veteran's representative filed April and May 2005 statements regarding an effective date of April 1, 1996, for the grant of service connection. The RO assigned an effective date of April 1, 1997 in the May 2005 rating decision implementing the Board's decision. The Board finds that the April and May 2005 statements are not Notices of Disagreement as they were sent prior to the rating decision which initially assigned the effective date. See 38 C.F.R. § 20.201. Remand for the issuance of a Statement of the Case is not warranted. See Manlincon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND Unfortunately, these claims must be remanded. It is necessary to remand this claim to ensure full and complete compliance with the duty-to-notify provisions enacted by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (the VCAA) (codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2002)). The U.S. Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002). The only letter sent to the veteran in July 2005 concerned only the claim for SMC for his wife. While the letter did provide the evidentiary standards relevant to SMC in general, it did not state that these standards were applicable not only to his wife but also to the veteran's own claim. The Board is constrained to remand the issue for compliance with the notice provisions contained in this law and to ensure the veteran has had full due process of law. The veteran submitted an April 2005 statement which included a report that the veteran's wife receives Social Security Administration benefits. The Court has held that, where VA has notice that the veteran is receiving disability benefits from the Social Security Administration (SSA), and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting SSA disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). Furthermore, the VCAA emphasizes the need for VA to obtain records from other government agencies. See 38 U.S.C.A. § 5103A (b)(3), (c)(3) (West 2002). The RO should request copies of the veteran's wife's SSA medical records and any determination of benefits made by SSA. In reviewing the record, the Board observes that the veteran's wife has not been afforded a VA examination for compensation purposes. Examination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.326. As the veteran's wife is in receipt of SSA benefits and the Board must remand this claim regardless, the Board takes this opportunity to order an examination for the veteran's wife to determine the extent to which the veteran's wife's disabilities render her housebound or require the daily aid and attendance of another person. See 38 C.F.R. § 3.351, 3.352 (2007). The Board received evidence directly from the veteran in July 2006. The veteran did not waive initial consideration of the evidence by the RO. See 38 C.F.R. § 20.1304(c) (2007) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). As this case must be remanded regardless, the Board will simply remand for RO consideration of the additional evidence. Accordingly, the case is REMANDED for the following action: 1. Provide to the veteran all notification action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), with respect to these claims, particularly his own claim for SMC. The notice should also inform the veteran that he should provide VA with copies of any evidence relevant to these claims that he has in his possession. Any notice given, or action taken thereafter, must comply with current, controlling legal guidance. 2. The RO should obtain from the Social Security Administration (SSA) records pertinent to the veteran's spouse's claim for Social Security disability benefits, including any decisions made and medical records relied upon concerning that claim. All efforts to obtain these records should be fully documented, and SSA should provide a negative response if records are not available. 3. After obtaining the veteran's wife's SSA records, the RO should take the appropriate steps to arrange for a VA examination with an individual with the expertise to determine if the veteran's wife has a permanent need for regular aid and attendance due to her disabilities. The examiner is requested to render an opinion as to whether the veteran's wife's disabilities result in physical or mental impairment that render her so helpless as to require the regular aid and attendance of another person. The examiner is requested to consider each existing condition and its impact on the veteran's wife's ability to perform acts of daily living, including keeping herself clean and presentable, feeding, dressing and undressing herself, attending to her needs of nature, and any adjustments to any special orthopedic appliances she may use. 4. Then, the RO should readjudicate the claims on the merits. If the benefits sought are not granted, the veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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. 2007). _________________________________________________ K. PARAKKAL 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) (2007).