Citation Nr: 1320902 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-41 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person, or on account of being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The record indicates that in March 2012 the Veteran withdrew his request for a hearing before a Veterans Law Judge. In a May 31, 2013 Informal Hearing Presentation, the Veteran's representative stated that the Veteran waived RO review of the evidence he had submitted, which includes copies of VA treatment records. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. 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 has appealed the denial of special monthly compensation based on the need for regular aid and attendance of another person, or on account of being housebound. He asserts that he requires the aid of a caregiver due to his service connected disabilities. In a November 2009 letter, the Veteran reported that he paid a caretaker lady to come in and assist him. Undated photos received by VA in early 2012 show the Veteran laying in a hospital bed in his kitchen. The Veteran is service connected for posttraumatic stress disorder (PTSD) with a 100 percent disability rating; type II diabetes with a 20 percent rating; peripheral neuropathy of the right lower extremity with a 10 percent rating, peripheral neuropathy of the left lower extremity with a 10 percent rating; and for residuals of a left ankle fracture, with a zero percent rating. Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: The inability of the 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 assistance. The inability of the 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, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court of Appeals for Veterans Claims (Court) held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco, 9 Vet. App. 222, 224. The evidence must show that the claimant is so helpless as to need regular and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352(a). VA treatment records dated in August 2011 and January 2012 indicate that the Veteran has diabetic neuropathy of the hands and that he has difficulty feeling with his fingers. Although service connection is not currently in effect for diabetic neuropathy of the hands, there is evidence that the Veteran has trouble grasping and holding objects due to disability which is secondary to one of his service-connected disabilities. As noted above, the criteria for the award of aid and attendance include several that are dependent on the ability of a person to use their fingers, such as the inability to dress or undress by themselves and the inability to feed themselves. In this case, the Veteran has not been provided a VA examination for aid and attendance purposes. Given that the record indicates that the Veteran has service-connected disability affecting his lower extremities, and disability of the fingers due to service-connected disability, and given that the Veteran has not been provided a VA medical evaluation of his disabilities, the Board finds that the Veteran should be provided a VA aid and attendance medical examination prior to adjudicating the Veteran's claim. See 38 C.F.R. § 3.159(c)(4). The Veteran's most recent VA treatment records of record are dated May 23, 2012. The Veteran's more recent VA treatment records should be obtained and considered. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records dated from May 24, 2012 to present. 2. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to determine if he has a need for regular aid and attendance or is housebound due to his service-connected disabilities. The claims folder should be made available to the examiner for review before the examination. All appropriate testing should be conducted, and all pertinent disabilities should be diagnosed. The examiner should determine the nature, extent, severity, and manifestations of all of the Veteran's current PTSD and diabetes mellitus disabilities, including any diabetic peripheral neuropathy of the hands. The examiner should render an opinion as to whether the Veteran's disabilities at least as likely as not (a probability of 50 percent or greater) (1) result in physical or mental impairment that leave him substantially confined to his dwelling and immediate premises (with reasonable certainty that such disability or disabilities and resultant confinement will continue throughout his lifetime), or (2) render him so helpless as to require the regular aid and attendance of another person. The examiner is requested to consider each existing condition and its impact on the Veteran's ability to perform acts of daily living; including keeping himself clean and presentable; feeding, dressing and undressing himself; attending to the needs of nature; and incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. A rationale for all opinions expressed should be provided. 3. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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).