Citation Nr: 1037167 Decision Date: 09/30/10 Archive Date: 10/05/10 DOCKET NO. 09-48 632 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to a higher level of special monthly compensation based on aid and attendance. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 RO decision, which denied a claim for entitlement to a higher level of special monthly compensation based on aid and attendance criteria. The Board notes that the Veteran also properly appealed the issue of entitlement to an increased evaluation for service-connected posttraumatic stress disorder (PTSD). However, in a January 2008 statement, the Veteran indicated that he wished to withdraw the appeal of this issue. As such, the issue of entitlement to an increased evaluation for service-connected PTSD is no longer on appeal before the Board. 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 The Veteran is seeking entitlement to a higher level of special monthly compensation based on aid and attendance. After a thorough review of the Veteran's claims folders, the Board has determined that additional development is necessary prior to the adjudication of this claim. The Board notes that a statement of the case (SOC) was issued in November 2009, which addressed the issue of entitlement to a higher level of special monthly compensation based on aid and attendance. This SOC was the last adjudication of this claim. In December 2009, the Veteran a submitted statement, in which he indicated that he was submitting supporting evidence for his appeal regarding aid and attendance. He further indicated that he was attaching a copy of his latest ECG that clearly shows his heart condition has gotten worse. Attached to this statement was an ECG from December 14, 2009, along with three other ECGs. While the other three ECGs were dated prior to the November 2009 SOC, the December 14, 2009, ECG was clearly not of record prior to the SOC. According to pertinent regulatory criteria, a supplemental statement of the case (SSOC) will be issued and furnished to a Veteran and his or her representative, following the receipt of additional pertinent evidence after a SOC or the most recent SSOC has been issued and before the appeal is certified and transferred to the Board. 38 C.F.R. § 19.37(a) (2009). Additionally, there is no indication that the Veteran wished to waive review by the agency of original jurisdiction. See 38 C.F.R. §§ 19.37, 20.1304 (2009). As such, it is incumbent upon the RO through the AMC to review the evidence and issue an appropriate SSOC. Additionally, the Board will take this opportunity to conduct additional development deemed necessary. Specifically, under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims held that 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) request that the claimant provide any evidence in his or her possession that pertains to the claim. The Veteran was afforded VCAA notice in March 2008. This letter informed the Veteran of the requirements for establishing entitlement to aid and attendance. This letter did not, however, provide the requirements for establishing entitlement to a higher level of special monthly compensation based on aid and attendance. Therefore, upon remand, the Veteran should be given proper notice of the requirements for establishing entitlement to a higher level of special monthly compensation based on aid and attendance. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to a higher level of special monthly compensation based on aid and attendance. 2. Then, readjudicate the Veteran's claim for entitlement to a higher level of special monthly compensation based on aid and attendance. In particular, review all the evidence that was submitted since the November 2009 SOC. If the benefit sought on appeal remains denied, issue an SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2009). _________________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).