Citation Nr: 1219708 Decision Date: 06/05/12 Archive Date: 06/13/12 DOCKET NO. 08-34 554 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person or on account of being housebound. 2. Entitlement to an effective date earlier than September 20, 2005, for the award of service connection for cold injury residuals of the feet. 3. Entitlement to an effective date earlier than September 20, 2005, for the award of service connection for cold injury residuals of the hands. ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to September 1992. The instant matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Previously, in March 2011, the Board remanded the issue of entitlement to SMC for additional development. Specifically, the Board requested that the agency of original jurisdiction (AOJ) notify the Veteran of the information and evidence necessary to substantiate a claim of entitlement to SMC based on the need for the regular aid and attendance of another person or on account of being housebound; to obtain all relevant treatment records dated from August 2008 forward; and to schedule the Veteran for a VA examination to determine the effect of his service-connected disabilities on his ability to care for himself and to leave his home. In April 2011, the Veteran was provided with a new letter notifying him of the information and evidence necessary to substantiate his claim. VA treatment records dated since August 2008 have also been obtained. In September 2011, the AMC initiated a request to have the Veteran scheduled for a VA examination in connection with his claim of entitlement to SMC, which examination was scheduled for October 4, 2011. However, the Veteran failed to report to his scheduled examination. The AMC subsequently readjudicated the claim in a March 2012 Supplemental Statement of the Case (SSOC). Accordingly, the Board finds that the AOJ complied with the Board's Remand instruction, to the extent possible. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance) & Dyment v. West, 13 Vet. App. 141, 146- 47 (1999) (remand not required under Stegall, supra, where Board's remand instructions were substantially complied with). Also in its March 2011 decision, the Board granted service connection for cold injury residuals of the hands and feet. Those grants of service connection were effectuated by the AMC in an April 2011 decision. Specifically, the AMC assigned 10 percent disability ratings for each of the cold injury residuals of the right hand, left hand, right foot, and left foot, all effective September 20, 2005. As will be discussed in further detail below, because the Veteran filed a notice of disagreement (NOD) with the September 20, 2005, effective date assigned to his awards of service connection, the Board will remand the claims for effective dates earlier than September 20, 2005, for the awards of service connection for cold injury residuals of the hands and feet for the sole purpose of ensuring the issuance of a statement of the case (SOC) along with information about the process for perfecting an appeal as to those issues, if the Veteran so desires. Lastly, in May 2012, while the appeal was pending at the Board, mail was received consisting of a VA Form 21-0820 (Report of General Information) dated on November 2, 2011, wherein it was noted that the Veteran had "called and stated he was unable to attend his C&P appointment for a cold weather injury." The Veteran requested that he be rescheduled. In September 2011, the AMC also initiated a request for the Veteran to be scheduled for a cold injury examination, but that that examination was cancelled by the RO. The stated reason was "incorrect test ordered." As it is unclear to the Board whether the Veteran was erroneously scheduled for a cold injury protocol examination or whether the Veteran was rescheduled for any such examination or appointment in response to November 2011 request, the matter is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND As noted above, pursuant to the March 2011 Remand, the Veteran was scheduled for a VA examination in connection with his claim for SMC based on the need for the regular aid and attendance of another person or on account of being housebound. However, the Veteran failed to report for that examination, and his claim was denied via a March 2012 SSOC. VA regulations provide that individuals for whom an examination has been scheduled are required to report for the examination. 38 C.F.R. § 3.326(a) (2011). In this regard, if a claimant fails to report for a scheduled examination, VA regulations provide: When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) . . . of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a) (2011). In an April 2012 statement, the Veteran asserted that he had had two deaths in his family which prevented him from attending his scheduled VA examination. The Veteran indicated that he had contacted the RO to attempt to reschedule the examination, but that the RO failed to do so. In light of the Veteran's April 2012 statement, the Board finds that good cause has been provided for his failure to report to his scheduled VA examination. 38 C.F.R. § 3.655. Thus, the Board finds that a remand is warranted for the Veteran to be scheduled for another VA examination to determine the effect of his service-connected disabilities on his ability to care for himself and to leave his home. As noted in the Introduction, in its March 2011 decision, the Board granted service connection for cold injury residuals of the hands and feet, which was effectuated in a rating decision issued by the AMC in April 2011. In doing so, the AMC assigned 10 percent evaluations for each of those disabilities, all effective September 20, 2005. The Veteran was notified of the decision by a letter dated in May 2011. In June 2011, the Veteran submitted a statement wherein he disagreed with the assignment of September 20, 2005, as the effective date for his awards of service connection. (The Board notes that the Veteran expressly agreed with the disability ratings assigned to his cold injury residuals.) It appears from the Veteran's statement that he believes that he is entitled to an effective date in December 1998. The Board finds that the Veteran's June 2011 correspondence is a valid and timely notice of disagreement (NOD) with the September 20, 2005, effective date assigned by the AMC in its April 2011 decision for the awards of service connection for cold injury residuals of the hands and feet. See 38 C.F.R. §§ 20.201, 20.302 (2011). The Board also notes that, in the April 2012 statement, the Veteran again expressed his disagreement with the effective date assigned to his awards of service connection, further evidencing his intent to pursue an appeal of those issues. However, an SOC has not yet been furnished concerning the Veteran's disagreement with the assignment of September 20, 2005, as the effective date for the awards of service connection for cold injuries residuals of the hands and feet. An SOC is required whenever a claimant protests a determination. 38 C.F.R. § 19.26 (2011). A remand is required for the issuance of an SOC regarding the issues of entitlement to effective dates earlier than September 20, 2005, for the awards of service connection for cold injuries residuals of the hands and feet. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). The SOC must be issued unless the Veteran's claim is resolved, such as by a complete grant of the benefit sought, or withdrawal of the NOD. The remanding of these issues must not be read as an acceptance of jurisdiction over the same by the Board. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely NOD to a decision denying the benefit sought and a timely substantive appeal after issuance of an SOC. 38 U.S.C.A. § 7105 (West 2002); Roy v. Brown, 5 Vet. App. 554 (1993). The AOJ should return the issues to the Board only if the Veteran perfects his appeal in accordance with the provisions of 38 U.S.C.A. § 7105. Accordingly, the case is REMANDED to the AOJ for the following action: 1. Issue an SOC addressing the issues of entitlement to effective dates earlier than September 20, 2005, for the awards of service connection for cold injury residuals of the hands and feet. The Veteran should be informed that he must file a timely and adequate substantive appeal to perfect an appeal of these issues to the Board and should be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. §§ 20,200, 20.02, 20.302(b). If a timely substantive appeal is not filed, these issues should not be certified to the Board. 2. Also, arrange for the Veteran to be afforded an appropriate VA examination to determine the effect of his service-connected disabilities on his ability to care for himself and to leave his home. The claims folder must be reviewed by the examiner in conjunction with the evaluation, and a notation reflecting this review should be made in the examination report. Any medically indicated tests should be accomplished. The examiner should: (A) discuss the manifestations associated with the Veteran's service-connected disorders. (B) opine as to whether the Veteran is substantially confined to his place of residence and immediate premises solely as a result of his service-connected disabilities and whether it is reasonably certain that the disabilities and resultant confinement will continue throughout his lifetime. (C) opine as to whether the Veteran is so helpless (solely as a result of his service-connected disabilities) as to require the regular (but not constant) aid and attendance of another person to perform personal care functions of everyday living or to protect himself from the hazards and dangers incident to daily environment. [In determining whether the Veteran is able to perform personal care functions, the ability to dress and undress, keep oneself ordinarily clean and presentable, feed oneself, attend to the needs of nature, protect oneself from the hazards and dangers incident to daily environment, and perform frequently required self-adjustment of prosthetic appliances should be considered.] The examiner must provide support for all opinions and included reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his or her opinion. If the examiner determines that he/she cannot provide an opinion on any issue at hand without resorting to speculation, the examiner should be asked to explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.) 3. Ensure that the examination report (including the opinions provided therein) comply with this Remand and the questions presented herein. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. Then, re-adjudicate the claim for SMC based on the need for the regular aid and attendance of another person or on account of being housebound. If this issue is not granted, furnish the Veteran with an SSOC and afford him an opportunity to respond before returning the record to the Board for further review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2011). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ THERESA M. CATINO 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) (2011).