Citation Nr: 1322892 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-19 037A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to special monthly compensation (SMC) at a level higher than that provided by 38 U.S.C.A. § 1114(l) for blindness in both eyes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to April 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2008 rating decision in which the RO, inter alia, granted SMC based on bilateral blindness under 38 U.S.C.A. § 1114(l) . In July 2008, the Veteran filed a notice of disagreement (NOD) seeking SMC at a level higher. The RO issued a statement of the case (SOC) in May 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2009. 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. With the exception of a June 2013 brief submitted by the Veteran's representative, a review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. The Veteran is currently receiving SMC pursuant to 38 U.S.C.A. § 1114(l) for blindness in both eyes with a 5/200 visual acuity or less. However, he seeks SMC at a higher level under 38 U.S.C.A. § 1114(m), which requires that the Veteran suffer from blindness in both eyes having only light perception or has suffered blindness in both eyes, rendering him so significantly disabled as to be in need of regular aid and attendance. Unfortunately, the Veteran has not received notice providing the information and evidence necessary to substantiate this claim in accordance with the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Thus, action by the RO is required to satisfy the provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board further notes that the Veteran was last afforded a VA examination to address the severity of his blindness in April 2009. To ensure that the record reflects the current severity of the Veteran's blindness, the Board finds that a more contemporaneous examination, with findings responsive to the applicable SMC criteria, is needed to properly evaluate issue on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA Aid and Attendance examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may well result in denial of the claim as it will be considered based on the other evidence of record. 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regards VA treatment records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Miami, Florida, dated up to March 2008; however, more recent records from this facility may exist. Further, the Veteran's Virtual VA electronic record also does not include any VA treatment records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Miami VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran since March 2008, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Miami VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, from March 2008 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the Virtual VA electronic file. 2. Furnish to the Veteran and his representative VCAA-compliant notice regarding the claim for SMC at a higher level. Explain how to establish entitlement to SMC at the next higher rate under 38 U.S.C.A. § 1114(m), as well as the evidence that will be obtained by VA and the type of evidence that is the Veteran's ultimate responsibility to submit. Request that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Ensure that the letter meets the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), particularly as regards disability ratings and effective dates, as appropriate. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA Aid and Attendance examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should specifically determine whether the Veteran suffers blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering him so significantly disabled as to be in need of regular aid and attendance. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence (to particularly include all evidence added to the record since the last adjudication of the claim) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).