Citation Nr: 1307175 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-05 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to special monthly pension benefits based on the need for regular aid and attendance of another person or based on being permanently housebound. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1969. He also served in the reserve. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied entitlement to special monthly pension, based on the need for regular aid and attendance of another person or based on being permanently housebound. 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 Veteran claims that he should be found eligible for special monthly pension on account of the need for aid and attendance of another person or on account of his being housebound. He is in receipt of a permanent and total disability evaluation for pension purposes, but and has not been granted entitlement to service connection for any disability. Special monthly pension may be awarded if a veteran is in need of regular aid and attendance. 38 U.S.C.A. § 1521(d). The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). A veteran will be considered in need of aid and attendance if he is (1) blind or 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; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set for in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Under 38 C.F.R. § 3.352(a), the following criteria will be accorded consideration in determining the need for regular aid and attendance: the 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; the inability of a claimant 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 the claimant from hazards or dangers incident to his daily environment. VA treatment records and records of the Social Security Administration's disability determination reflect that the Veteran has several disabling conditions, including degenerative joint disease of the hips, back, knees, neck, and shoulder. He reports needing a total hip replacement. There is, however, no indication of whether he meets the specific criteria noted above. Moreover, the most recent treatment records in the physical and Virtual VA claims file are from 2008. The Veteran contends that a VA examination is warranted to determine whether he meets the criteria for entitlement to special monthly pension based on aid and attendance or housebound. As this is a claim for pension the general duty to assist provision, 38 U.S.C.A. § 5103A(a), is applicable. While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008) (analyzing the statute in the context of a claim for dependency and indemnity compensation). As the evidence of record reflects the possibility that the Veteran may meet one of the criteria for entitlement to special monthly pension based on aid and attendance or housebound, and as the evidence of record is not current, a medical opinion is necessary to substantiate the claim and the Board will direct that the Veteran be afforded a VA examination. Given the lack of VA treatment records since 2008, all outstanding VA treatment records should be obtained. The Veteran has indicated he receives all treatment at the Central Texas Veterans Health Care System in Temple, Texas. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, including those from the Central Texas Veterans Health Care System in Temple, Texas. If the RO cannot locate such records, the RO 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 claims. The claimant must then be given an opportunity to respond. 2. Thereafter, please afford the Veteran a VA examination to determine whether he is in need of aid and attendance. The examiner must be afforded access to the appellant's claims folder, a copy of this remand, and Virtual VA. The criteria in the applicable regulations as described above should be used, including a determination whether the Veteran is blind or 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; ability to dress or undress himself, or to keep himself ordinarily clean and presentable; in frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; unable to feed himself through loss of coordination of upper extremities or through extreme weakness; or unable to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis for protection from hazards or dangers to daily environment. The examiner must also address whether it is at least as likely as not that the Veteran is permanently housebound by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his dwelling and the immediate premises on account of disability. 3. After the above development has been completed, the AMC/RO must readjudicate the claim of entitlement to special monthly pension based on aid and attendance and housebound status. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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. 2011). _________________________________________________ DEREK R. BROWN 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).