Citation Nr: 1316740 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-47 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance and/or on account of being housebound. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1962 to July 1968. She is the recipient of the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In January 2012, the Veteran testified before an Acting Veterans Law Judge (AVLJ) via video-conference. A transcript of the hearing is of record. In correspondence dated February 2013, the Veteran was informed that the AVLJ who had conducted the January 2012 hearing was no longer employed at the Board, and she was given 30 days to elect to have another hearing. No response was received from the Veteran (nor was the mail returned as undeliverable); accordingly, the Board finds that there remains no outstanding hearing request. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals documents which are either duplicative of those already in the claims file or not pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran is service-connected for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling; lumbar compression fracture L2, evaluated as 50 percent disabling; and coronary artery disease, evaluated as 10 percent disabling. Her combined disability rating is 90 percent and she has been awarded a total disability rating based on individual unemployability as of July 6, 2004. The Veteran contends that her service-connected disabilities require the need for the regular aid and attendance of another person and/or render her housebound. The Veteran's SMC claim was last adjudicated by the agency of original jurisdiction (AOJ) in a November 2010 statement of the case. Subsequently, in June 2011, she was awarded service connection for coronary artery disease, designated as 10 percent disabling, in part, based on a heart disability benefits questionnaire, completed in December 2010. As the award of service connection for coronary artery disease was subsequent to the last adjudication of the Veteran's SMC claim, the AOJ has not had the opportunity to consider such disability in the context of the SMC claim. Moreover, the evidence relied upon by the AOJ in granting service connection for coronary artery disease has also not been considered by the AOJ in connection with the Veteran's SMC claim. Also pertinent to the Veteran's SMC claim, the record shows she receives treatment from a private cardiologist, Dr. DeHahn, located in Manchester. See Board Hearing Tr. at 9. Such treatment records are not in the claims file and have not been requested by the AOJ. These records should be sought on remand, with any needed assistance from the Veteran. The Board also notes that the Veteran receives treatment for her service-connected disabilities through the West Haven, Connecticut, Healthcare System (HCS). The most recent treatment records contained in the Veteran's claims file are dated from October 2010. Therefore, while on remand, any treatment records from the West Haven VA facility dated from October 2010 to the present should be obtained for consideration in the Veteran's appeal. The Board further finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine whether her service-connected disabilities require the regular aid and attendance of another person and/or render her housebound. In this regard, she testified at her Board hearing that, as a result of such disabilities, she has difficulty putting on her socks and footwear, requires the use of a rail when bathing/showering, needs assistance in remembering to take medications, suffers falls due to her back disability, experiences thoughts of hurting herself one to two times a month, and stays in bed due to depression on occasion. Additionally, in a June 2010 statement, the Veteran's treating VA physician indicated that she recommended the Veteran for the aid and assistance program. Therefore, the Board finds that the Veteran should be afforded a VA examination in connection with her SMC claim. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify all sources of private treatment for her service-connected disabilities and to provide necessary releases for records of such treatment. Of particular interest are any records from Dr. DeHahn, a private cardiologist located in Manchester. The AOJ should obtain complete records of all such treatment from all sources identified by the Veteran. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. 2. Obtain all VA treatment records from the West Haven HCS from October 2010 to the present pertaining to the Veteran's service-connected disabilities. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining all outstanding treatment records, schedule the Veteran for an examination by an appropriate medical professional in relation to her claim of entitlement to SMC based upon an asserted need for aid and attendance of another person and/or housebound status. All appropriate tests must be performed and a copy of the examination report must be associated with the claims file. The claims file, and a copy of this remand, must be reviewed by the examiner in conjunction with the examination. Thereafter, the examiner should address the following inquiries. The examiner is advised that the Veteran is service-connected for PTSD, a low back disability, and coronary artery disease. The examiner should state an opinion as to whether the Veteran's service-connected disabilities, either singularly or jointly, necessitate the regular aid and attendance of another person (in other words, that he is helpless or is so nearly helpless as to require the regular aid and attendance of another person). The criteria for establishing the need for aid and attendance include consideration of whether the Veteran is blind or is 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; or whether she is a patient in a nursing home because of mental or physical incapacity; or whether she establishes a factual need for aid and attendance under the criteria set forth under 38 C.F.R. § 3.352(a), to include the inability to dress/undress, or to keep ordinarily clean/presentable; frequent adjustment of special prosthetic/orthopedic appliances requiring the aid of another; inability to feed herself; inability to attend to wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis to protect her from hazards/dangers incident to daily environment. The examiner must also state whether the Veteran's service-connected disabilities, either singularly or jointly, render her permanently housebound, i.e., substantially confined to his dwelling or immediate premises, or if institutionalized, to the ward or clinical areas. Please provide a detailed rationale for each opinion rendered. 4. After completing the above, conducting any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's SMC claim should be readjudicated based on the entirety of the evidence, to include consideration of all the Veteran's service-connected disabilities (including coronary artery disease) and all evidence received since the November 2010 statement of the case. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). _________________________________________________ A. JAEGER 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) (2012).