Citation Nr: 1308348 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 08-36 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a higher rate of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(r)(2). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from April 1981 to July 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board notes that the Veteran's appeal was previously before it in October 2011 at which time it remanded for additional development. In the remand, the Board acknowledged that, although the Veteran was afforded a VA aid and attendance examination in November 2010, such examination was provided by a nurse (RN), instead of a VA physician - who, pursuant to 38 U.S.C.A. § 1114(r)(2), must make the determination as to whether the Veteran is in need of a higher level of care. Furthermore, the Board noted that the November 2010 VA examiner did not provide a rationale for her opinion, nor did she reconcile the favorable December 2004 certification by a VA physician (who the Board noted also did not provide a rationale for his conclusion). Hence the Board remanded the Veteran's claim in order to obtain, among other things, a new VA examination conducted by a VA physician who should provide a medical opinion as to the Veteran's need for a higher level of care. The Board also asked that the VA physician determine the type of care that the Veteran's mother is providing him and was requested to comment on the favorable certification by a VA physician in December 2004. Finally, the VA physician was asked to set forth all examination findings together with the complete rationale for the comments and opinions expressed. After some difficulty in scheduling the Veteran for a VA examination (essentially because the Veteran required wheelchair accessible transportation), an examination was conducted in August 2012. However, as pointed out by the Veteran's representative in its February 2013 informal hearing presentation, the examiner who conducted this examination was the same RN who performed the prior examination in November 2010 and who was found by the Board in its October 2011 remand to not be the appropriate person to conduct the required examination because the law requires that a VA physician conduct such an examination. Consequently, the Board's instruction that the VA examination be conducted by a VA physician was not satisfied. Furthermore, the Board instructed that the VA physician who conducted the new examination determine the type of care that the Veteran's mother is providing and address the favorable certification from December 2004 by a VA physician The Veteran's representative argues that these instructions were also not complied with. The Board notes that the August 2012 VA examiner did comment on what assistance with activities of daily living the Veteran's mother and sister provided him; however, she did not indicate whether they provide any "personal health-care services" and the frequency of those services. The Board notes that the daily need for such services is required for entitlement to special monthly compensation at the (r)(2) rate. As set forth in 38 C.F.R. § 3.352(b)(2), "personal health-care services" includes, but is not limited to, physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. In addition, the examiner stated she was unclear as to what "certification" the Board was referring to and so did not comment on it. Thus, it does not appear that the examiner complied with the Board's requests as to these matters as well. The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. Where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Board's prior remand instruction relating to the VA examination was not completed, remand is necessary to obtain compliance by providing the Veteran with a new VA examination conducted by a VA physician. The AMC should ensure that the new VA examination report addresses all items the Board requests the VA physician comment or opine on. The Board further notes that there was some difficulty in arranging the prior VA examination, which was finally resolved by adding a note on the VA examination request that the Veteran needed "transportation and wheelchair for his appointment (van wheelchair)". Thus, in the new VA examination request, such statement should be included. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA aid and attendance examination of all service-connected disabilities to determine the level of regular aid and attendance required by the Veteran. The examination must be conducted by a VA physician, as required by law (see 38 U.S.C.A. § 1114(r)(2)). All indicated tests and studies should be conducted. The claims folder should be made available to the VA physician for review before the examination, and such review should be noted in the report. It is requested that the guides for conducting aid and attendance or housebound exams be used, and that all clinical findings as to the service-connected disorders be set forth in detail. The VA physician is requested to opine whether the Veteran is in need of a higher level of care consisting of personal health-care services (the definition of which is set forth above in the body of this remand) provided on a daily basis in the Veteran's home and if, in the absence of such higher level of care, the Veteran would require hospitalization, nursing home care, or other residential institution care. In providing the requested opinion, the VA physician should state whether the Veteran's mother and/or sister are providing him with "professional health-care services" as either professional health-care providers or under profession health-care supervision. Furthermore, the VA physician is requested to comment on the favorable certification by a VA physician in December 2004 (which has been tabbed in claims file volume #2 and is on a form titled Examination for Housebound Status or Permanent Need for Regular Aid and Attendance)). The examiner should set forth all examination findings, together with a complete explanation for the reasons for all opinions expressed. Finally, in making the VA examination request, the AMC should include at the end of such request the following statement to ensure that there is no unnecessary delay in providing the Veteran with the VA examination: "The Veteran will need transportation and wheelchair for his appointment (van wheelchair)." 2. Thereafter, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran 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 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). _________________________________________________ MICHAEL MARTIN 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 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).