Citation Nr: 1047653 Decision Date: 12/22/10 Archive Date: 12/30/10 DOCKET NO. 06-07 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to special monthly compensation based upon the need for aid and attendance or by reason of being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to June 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2010, the Board remanded this matter to the RO to schedule a Travel Board hearing. The Veteran testified at a hearing before the undersigned at the Montgomery, Alabama RO in June 2010. A transcript of the hearing is of record. 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 After careful review of the evidence, the Board finds that additional development is necessary before proceeding to evaluate the merits of the Veteran's claim for special monthly compensation. Unfortunately, the evidence presently of record is not adequate to render a determination regarding that claim on appeal. The claims file contains a VA examination dated in March 2005 for aid and attendance. The March 2005 VA examiner determined that the Veteran did not require daily skilled service. The Veteran's VA physician submitted a letter dated in January 2006 asserting that the Veteran needs help with driving and activities around the house due to nonservice-connected dementia and his service- connected PTSD. In May 2007, the Veteran submitted a statement in support of claim asserting that his service-connected disabilities have become worse and he needs someone to assist him with his daily activities. A May 2009 VA examination evaluated the Veteran's current service-connected PTSD symptoms; however, the examiner did not evaluate the Veteran's symptoms to determine whether he needed aid and attendance. Furthermore, the Veteran was not provided with a VA examination after the Veteran indicated his symptoms became worse with respect to his other service-connected disabilities. The U.S. Court of Appeals for Veterans Claims has held that "[w]here the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination." Olson v. Principi, 3 Vet. App. 480, 482 (1992). Thus, the Board finds that the Veteran must be provided with an additional VA examination to determine whether the Veteran is in need of the regular aid and attendance of another person, or bedridden, solely due to his service-connected disabilities. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of the claim, of failing to so report. See 38 C.F.R. § 3.655 (2010). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine whether he meets the requirements for special monthly pension based on the need for regular aid and attendance or by reason of being housebound. The claims folders, to include this Remand, must be reviewed by the examiner. The examination should take into account all of the Veteran's service- connected disabilities (PTSD, rated at 70 percent; shrapnel fragment would to the chest with left pneumothorax, rated at 20 percent; gunshot wound residuals to the left shoulder with muscle damage, rated at 20 percent; left 4th and 5th rib fracture residuals, rated at 0 percent; and left arm scar, rated at 0 percent). The examiner should also specifically take into consideration his need for assistance to perform the needs of nature, of the limits on his movements inside his house, his need for a companion when he goes outside his home and the his functional limitations due to his service-connected disabilities. The examination report should contain sufficient information to determine whether it is at least as likely as not that the Veteran is in need of regular aid and attendance, that is, whether he is helpless or is so nearly helpless as to require the regular aid and attendance of another person, due solely to his service- connected disabilities. The Board notes for the record that the criteria for establishing the need for aid and attendance include consideration of whether the appellant is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or whether he is a patient in a nursing home because of mental or physical incapacity; or whether he establishes factually a need for aid and attendance under the criteria set forth under 38 C.F.R. § 3.352(a) (inability to dress/undress, or to keep ordinarily clean/presentable; frequent adjustment of special prosthetic/orthopedic appliances requiring the aid of another; inability to feed himself; inability to attend to wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis to protect from hazards/dangers incident to daily environment). If the Veteran is in need of aid and attendance due to his nonservice-connected disabilities, that should also be noted. In addition to the foregoing, the examination report should contain sufficient information to determine whether it is at least as likely as not that the Veteran is housebound, in that the appellant is bedridden or substantially confined to his home or immediate premises by reason of permanent disabilities, due solely to his service- connected disabilities. The examiner should explain the rationale for all opinions given. 2. Upon completion of the foregoing, the RO should readjudicate the Veteran's claim of entitlement to special monthly compensation based on aid and attendance, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, the RO should provide the veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant 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). 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. 2009). _________________________________________________ L. M. BARNARD Acting 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) (2010).