Citation Nr: 1303582 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-12 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from June 1961 to June 1965 and from January 1966 to April 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appeal was certified to the Board by the RO in Winston-Salem, North Carolina. In his April 2009 VA Form 9, the Veteran requested a travel board hearing. In February 2011, he indicated that he was unable to attend the hearing and requested that a decision be made based on the evidence of record. The hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). In December 2010, the Board denied entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate and entitlement to special monthly compensation for loss of use of the right foot. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In April 2012, the parties filed a Joint Motion for Partial Remand (Joint Motion). In a May 2012 Order, the Court granted the Joint Motion and remanded the Board decision only to the extent that it denied entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. The appeal as to the remaining issue was dismissed. The Virtual VA eFolder has been reviewed. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Pursuant to the Joint Motion, the parties agreed that (1) the Board did not provide an adequate statement of reasons or bases for finding that VA was not required to provide the appellant with a medical examination or opinion; (2) the Board did not adequately explain its determination that appellant was not housebound because it did not apply the correct standard; and (3) the Board must ensure adequate efforts to obtain appellant's Social Security Administration records. In September 2012, the attorney argued that the Board should remand the case to obtain the Veteran's Social Security records and then request an examination to determine whether the Veteran's service-connected somatoform disorder with hypochondriasis is such that he needs regular aid and attendance or is housebound. On review and with consideration of the Joint Motion and attorney arguments, the Board finds it necessary to remand the case for additional development. 38 C.F.R. § 3.159(c) (2012). Accordingly, the case is REMANDED for the following action: 1. The RO should request from the Social Security Administration all medical records upon which any claim or award of disability benefits was based. All records obtained or any response received should be associated with the claims folder. If the RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. All attempts to obtain records should be documented in the claims folder. 2. Thereafter, the RO should schedule the appellant for a VA aid and attendance/housebound examination. The claims folder must be available for review by the examiner. Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. The examiner is requested to indicate whether the Veteran, as a result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. In making this determination, the examiner is requested to discuss the Veteran's ability for self-care. The examiner should also indicate whether, as a result of service-connected disability, the Veteran is substantially confined to his dwelling and immediate premises. The examiner is advised that service connection is in effect for somatization disorder with hypochondriasis evaluated as 100 percent disabling. A complete rationale must be provided for any opinion offered. 3. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. Upon completion of the above requested development and any additional development deemed appropriate, the RO must readjudicate the issue of entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2011). _________________________________________________ MICHAEL D. LYON 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) (2011).