Citation Nr: 1308334 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 06-39 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person (A&A) or at the housebound rate. (The issues of entitlement to service connection for osteoporosis; kyphosis; ankylosing spondylitis, breast cancer, migraines, osteomalacia, and scoliosis, are addressed in a separate decision. ) REPRESENTATION Veteran represented by: Veteran's spouse WITNESSES AT HEARINGS ON APPEAL Veteran and Veteran's spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to December 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Board hearing was held in May 2008 before a Veterans Law Judge, sitting in St. Petersburg, Florida. In November 2009, the Veteran testified at a Board hearing before another Veterans Law Judge in St. Petersburg, Florida. These Veterans Law Judges are included in the panel of judges rendering the determination in this case. Complete transcripts are of record. In May 2012, the Veteran waived her right to appear at an additional hearing before a third Veterans Law Judge. See 38 U.S.C.A. § 7102(a) (West 2002 & Supp. 2012); 38 C.F.R. § 19.3 (2012). This matter was remanded in June 2010. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any further action is required on her part. REMAND The Veteran in this case seeks entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or on the basis of being housebound. In that regard, compensation at the aid and attendance rate is payable when the 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. 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2012). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress himself/herself or to keep himself/herself 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 of the claimant to feed himself/herself 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 the hazards or dangers inherent in his/her daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a) (2012). Special monthly compensation is also payable where the veteran has a single service-connected disability rated as 100 percent, without resort to individual unemployability, and, in addition: (1) has a 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. This requirement is met when the veteran is substantially confined as a result of her service-connected disabilities to her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Service connection is in effect for PTSD with depression, rated 100 percent disabling, effective October 10, 2002. In a separate decision, the Board has determined that service connection is warranted for kyphosis, ankylosing spondylitis, and migraines. In light of service connection being established for these disabilities, the Board has determined that the RO should readjudicate the claim for a SMC in consideration of the disability ratings and effective dates assigned by the RO to these disabilities. Moreover, correspondence dated in June 2010 from the Veteran's VA treating psychiatrist and neurologist discusses the Veteran's PTSD, and her other disabilities, to include kyphosis, ankylosing spondylitis, and migraines. The physician opined that the Veteran is housebound due to her PTSD with depression, and that her disabilities have made her in need of aid and attendance. The Board has determined that an opinion should be obtained as to whether the Veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance due to her service-connected PTSD with depression, kyphosis, ankylosing spondylitis, and migraines, or whether the Veteran is substantially confined as a result of her service-connected PTSD with depression, kyphosis, ankylosing spondylitis, and migraines to her dwelling and the immediate premises and it is reasonably certain that the disability and resultant confinement will continue throughout her lifetime Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be scheduled for a VA aid and attendance examination. The claims file should be made available to and reviewed by the examiner in connection with the examination. The examiner is requested to provide an evaluation of all of the Veteran's disabilities on her capability for self care in her home. The examiner's assessment must include, but not be limited to, evaluation of such conditions as: inability of the claimant to dress or undress herself or to keep herself 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 of the claimant to feed herself 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 the hazards or dangers inherent in her daily environment. The examiner should opine as to whether due to her service-connected PTSD with depression, kyphosis, ankylosing spondylitis, and migraines the Veteran is so helpless as to be in need of regular aid and attendance. The examiner should determine whether her service-connected PTSD with depression, kyphosis, ankylosing spondylitis, and migraines, results in being substantially confined to her dwelling and the immediate premises and it is reasonably certain that the disabilities and resultant confinement will continue throughout her lifetime The examiner should be made aware that service connection is not in effect for any other disabilities, to include osteoporosis, breast cancer, osteomalacia, scoliosis, rheumatoid arthritis, and immune system compromise. 2. After completion of the above and upon implementing the grant of service connection for kyphosis, ankylosing spondylitis, and migraines, the RO/AMC should readjudicate the issue of entitlement to SMC due to need for aid and attendance or at the housebound rate. If the benefit sought is not granted in full, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and her representative have 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. 2012). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals _________________________ ___________________________ K. OSBORNE A. JAEGER Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals 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) (2012).