Citation Nr: 1124417 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 09-42 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance of another person or by reason of being housebound. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the benefits sought on appeal. A hearing was held on January 12, 2011, in Wichita, Kansas, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. During the hearing, the Veteran indicated that he wished to pursue a claim for a total rating based upon individual unemployability due to service-connected disability (TDIU). However, that matter is not currently before the Board because it has not been prepared for appellate review. Accordingly, the issue of entitlement to TDIU is 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 Board's review of the claims file reveals that further action on the claim on appeal is warranted. SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2010). Pursuant to 38 C.F.R. § 3.350(b)(3) and (4) (2010), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a) (2010). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. "Bedridden," defined as that condition, which, through its essential character, actually requires that a claimant remain in bed, is a proper basis for this determination. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). In addition, SMC at the housebound rate is payable when a veteran has a single service-connected disability rated 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 U.S.C.A. § 1114(s) (West 2002). The requirement of 38 U.S.C.A. § 1114(s)(2) is met when a veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. See 38 C.F.R. § 3.350(3)(i)(2) (2010). In this case, the Veteran contends that he is entitled to special monthly compensation based upon the need for regular aid and attendance of another person or by reason of being housebound, as he cannot care for himself and requires the assistance of his wife to perform the necessary activities of daily living, including changing clothing, eating, bathing, and other hygiene-related activities. An August 2007 medical statement for consideration of housebound or aid and attendance reflects that, while the Veteran is not confined to his home, he is unable to walk unattended, needs assistance with bathing and hygiene needs, is unable to care for the needs of nature, needs assistance getting in and out of bed, and cannot leave home without assistance. The Board notes that the Veteran's only service-connected disability is posttraumatic stress disorder (PTSD), which is assigned a 100 percent disability evaluation. However, the evidence of record shows that his reported difficulties are due largely to a cerebral vascular accident in 2007 that resulted in left-sided hemiplegia rather than due to his service-connected PTSD. Indeed, VA outpatient treatment records reflect that the Veteran suffered a cerebral vascular accident and hemiparesis in 2007 and has since been wheelchair-bound and required the assistance of his wife activities, such as bathing and eating. The Board notes that the Veteran did submit a claim for service connection for a stroke in September 2010. However, the RO has not yet adjudicated the claim. Given the severe impact of the stroke on the Veteran's ability to ambulate and perform the activities of daily living, the potential outcome of the claim for service connection for a stroke could affect the outcome of the issue of whether the Veteran's service-connected disabilities would meet the requirements for SMC. See 38 C.F.R. §§ 3.350, 3.352. Accordingly, the special monthly compensation claim is inextricably intertwined with the service connection claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the SMC issue must be deferred pending full development and adjudication of the Veteran's claim for service connection for a stroke. In addition, during his January 2011 hearing, the Veteran indicated that he is in receipt of Social Security Administration (SSA) benefits. While it is unclear as to whether these benefits are due to the Veteran's age or due to disability, and SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Thus, when VA is put on notice of the existence of SSA records, as in this case, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Therefore, the Board finds that the RO should obtain and associate with the claims file a copy of SSA's determination, as well as copies of the medical records underlying that determination. Moreover, it appears that there may be additional VA medical records that may be pertinent to the claim on appeal. In this regard, it appears that the Veteran receives treatment at VA Medical Center (VAMC) in Kansas City. The claims file does contain outpatient treatment records from Kansas City VAMC dated through March 2011. However, as this case is already being remanded for further development, the RO should take this opportunity to obtain and associate with the claims file any more recent treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain from the Kansas City VAMC all outstanding treatment records dated from March 2011 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records and/or responses received should be associated with the claims file 2. The RO should obtain a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. After completing the requested actions, any additional notification and/or development warranted by the record, and adjudication of the claim for service connection for a stroke, the RO should readjudicate the claim for SMC in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations and afford them the appropriate time period for response. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until he is notified. 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. 2010). _________________________________________________ JESSICA J. WILLS 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).