Citation Nr: 1322103 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-18 220A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to special monthly death pension benefits based on the need for regular aid and attendance or upon housebound status. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active service from February 1941 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Manila, the Republic of the Philippines. The appellant is the surviving spouse of the Veteran, who died in February 1976. The Board notes that the appellant failed to report for a scheduled VA medical examination in April 2011. Shortly thereafter, the appellant submitted two letters from her doctors, dated in April 2011, which stated that she was unable to travel outside of her hometown and island to Manila for a medical examination. Following a review of the claim, the Board, in March 2012, remanded the claim to the RO for the purpose of obtaining additional medical documents that would possibly support the appellant's assertions. The claim has since been returned to the Board for review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Regrettably, the appeal is once again 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 appellant has come to the Board claiming that the RO erred when it failed to grant her benefits based on the need for aid and attendance or at the housebound rate. She asks that the Board reverse the RO's decision and grant her the benefits she believes that she deserves. A review of the record indicates that the appellant has not undergone a specific VA Aid and Attendance Examination that would provide medical evidence concerning whether the appellant needs or requires the assistance of another (aid and attendance). The record does, however, reveal that the appellant was scheduled for such a medical examination but that the examination was scheduled for the VA Outpatient Clinic in Manila, the Republic of the Philippines. The appellant failed to report for the scheduled examination. Yet, it is noted that the appellant does not live in Manila nor does she live on the island of Luzon. Instead, she lives on the island of Negros with the closest large city with a respectable medical center being Dumaguete. The Board further recognizes that the appellant has submitted statements from health care professionals suggesting that the appellant is unable to leave the island of Negros; however, those same records insinuate that the appellant could attend a physical examination in Dumaguete. Added to the appellant's nonappearance at the requested examination is the fact that the record is devoid of medical information concerning the appellant's need for aid and attendance of another person or whether she is housebound. Although there are some medical records contained in the claims file, these records do not address whether the appellant needs the aid and attendance of another person in order to accomplish the activities of daily living. Because there is insufficient information as to whether the appellant's disabilities are so severe as to require the need of aid and attendance of another person, it is the determination of the Board that the claim should be returned to the RO so that an examination on the island of Negros may be accomplished. Such an action will ensure that the VA has completed its duty to assist the appellant in providing her a complete and accurate medical examination in conjunction with her claim and it will also allow the VA to obtain medical information which may be used to address the assertions made by the appellant. The Board further notes that when the Board remanded the appellant's claim in March 2012, the Board asked that the RO contact the appellant and obtain the proper document releases so that the RO could request/obtain the appellant's private medical treatment records. The record reveals that the RO did contact the appellant and request that she provide the releases of information but that said releases were not forthcoming from the appellant. Because the claim is being returned to the RO for additional development, the Board finds that another attempt to obtain those records should be attempted. Hence, these treatment records should be associated with the claims file if available based on the cooperation of the appellant. Accordingly, this case is REMANDED for the following action: 1. The RO should contact the appellant and ask that she identify any private medical records that have not yet been provided to VA, , and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. The appellant should be informed that her assistance in supplying the authorizations to the RO is paramount and that her failure to provide the needed information could adversely affect her claim before the VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Copies of the medical records from all identified private sources (not already in the claims folder) should then be requested. Of specific interest are any medical records of the appellant that may be at Silliman University Medical Center, Dumaguete City, or under the controls of Doctors S. P. Oliver-Sosario, B. G. Sy, and F. N. Jordan, all of Dumaguete City. All records obtained should be added to the claims folder. If requests for any treatment records are not successful, the RO should inform the appellant of the nonresponse so that she will have an opportunity to obtain and submit the records herself, in keeping with her responsibility to submit evidence in support of her claim. 38 C.F.R. § 3.159 (2012). 2. Only after all of the appellant's private medical records have been obtained and included in the claims folder for review, the RO should then schedule the appellant for an appropriate examination to determine her need for special monthly compensation based on the need for regular aid and attendance or on being housebound. The examination should be scheduled for and contracted with a medical facility located in Dumaguete City, such as the Silliman Medical Center. The examiner should be given a copy of this remand and he/she should be requested to review the appellant's medical history and state that this has been accomplished. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The purpose of the examination is to determine housebound status or the need for regular aid and attendance. Each of the appellant's diagnosed disorders, disabilities, and conditions should be evaluated, and the examiner is asked to describe the nature of the appellant's disabilities and the effect of her disabilities on her ability to perform daily functions. Specifically, is the appellant unable to dress or undress herself and keep herself ordinarily clean and presentable? Does she require frequent adjustment of any special prosthetic or orthopedic appliances that cannot be done without aid? Is she unable to feed herself through loss of coordination of upper extremities or through extreme weakness, or unable to attend to the wants of nature? Does she have incapacity, physical or mental, that requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment? Does she have any disability that requires that she remain in bed? Is she substantially confined to her dwelling and the immediate premises, and if so, it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime? When the examiner makes his or her determination with respect to the above questions, the examiner should specify which disability(ies) or a combination thereof that would cause the appellant to be housebound or to depend on another for regular aid and attendance. The examiner must provide a report including complete rationales for all opinions and conclusions reached. If further testing or examination by other specialists is determined to be warranted in order to evaluate the condition(s) at issue, such testing or examination is to be accomplished prior to completion of the examination report. 3. Thereafter, the RO should readjudicate the claim. If the benefits sought on appeal remain denied, the appellant and her accredited representative should be provided a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA-sponsored examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. The law requires that all claims 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). _________________________________________________ JAMES L. MARCH 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).