Citation Nr: 1127440 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 10-21 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person for the purpose of accrued benefits. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from June 1947 to January 1954. The Veteran died in July 2007; the present appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut that denied SMC based on aid and attendance for accrued benefits purposes. REMAND The Board finds that further development is required before this appeal can be adjudicated. The appellant has repeatedly requested a hearing before a Decision Review Officer (DRO) at the RO. The record reflects she was scheduled to testify in May 2009 but rescheduled in July 2009; no hearing was conducted, and the Appellant subsequently renewed her request for a DRO hearing in her December 2009 Notice of Disagreement. The Board finds as a matter of due process that the Appellant must be afforded a DRO hearing before the Board can consider the merits of the appeal. In another matter, the appellant has submitted photocopies of correspondence she asserts the Veteran sent to the RO in April 2007 and June 2007, prior to his death in July 2007. This correspondence constitutes a claim for SMC for aid and attendance, with attached medical evidence. Review of the rating decision and the Statement of the Case does not show that the RO has considered whether this correspondence was of VA record at the time of the Veteran's death, and if so whether the correspondence shows the Veteran to have been housebound or in need of attendance by another person due to his service-connected disability. Because the RO has not considered this evidence in the first instance, remand is required at this point to enable the originating agency to do so. Accordingly, the case is REMANDED to the RO or to the Appeals Management Center (AMC) for the following action: 1. The RO or AMC should schedule the appellant for a hearing before a DRO in accordance with the docket number of her appeal. If the appellant withdraws her hearing request, such withdrawal should be memorialized in writing in the claims file. 2. The RO or AMC should also review the claims file to determine if the Veteran's correspondence in May 2007 and June 2007, which was submitted by the appellant with her instant Notice of Disagreement, was of VA record at the time of his death. In making this determination the RO should consider the special procedures established by the Secretary of Veterans Affairs for missing documents submitted by claimants between April 14, 2007, and October 14, 2008. If the correspondence cited above is determined to have been or record at VA at the time of the Veteran's death, the RO or the AMC should also determine if those documents established that the Veteran was currently housebound or in need of aid and attendance by another person due to his service-connected disabilities. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should adjudicate on a de novo basis the issue of entitlement to SMC based on aid and attendance for accrued benefits purposes. If the benefit sought on appeal is not granted to the appellant's satisfaction, the RO or the AMC should furnish to the appellant a Supplemental Statement of the Case and afford her the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant 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 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). _________________________________________________ Shane A. Durkin 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).