Citation Nr: 1323375 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-00 389A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to February 1976 and from 1980 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). 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 Additional development is necessary prior to further disposition of the claim. The Veteran contends that he is in need of aid and attendance to complete his activities of daily living, including bathing, grooming, and dressing, and that he cannot drive independently, due to his service-connected disabilities, specifically, his cervical spine disability which results in paralysis of the left arm and his lumbar spine disability which results in paralysis of the left leg. Because the Veteran does not live in the United States, but instead has resided in Thailand since 2008, the most recent VA examination evaluating the severity of his disabilities was conducted in 2006. At that time, the Veteran described symptoms such as stiffness and weakness due to pain, with burning pain in his left upper arm and legs. He reported incapacitating episodes 8 times per month, and it was stated that he was "essentially bed bound," and could "only move with the assistance of a person, walker, or TLSO." However, it is unclear whether such statements were made by the Veteran and based on his subjective report, or whether they are medical conclusions by the VA examiner. While physical examination demonstrated severe lumbar muscle spasm, flexion of the spine limited to 20 degrees, and sensory deficit in the left upper and lower extremities, motor weakness of both extremities was 3/5, suggesting that there was no paralysis. When reviewing the April 1997 VA examination, there was a suggestion that the degree of paresthesias displayed by the Veteran was inconsistent with the physical findings, which were negative for muscle atrophy. There are no other more recent records to review in this case. Accordingly, the Board finds that a remand for a VA examination is necessary, if such can be arranged, in order to accurately determine the severity of the Veteran's service-connected disabilities and whether they meet the criteria for SMC. On remand, the RO should obtain the Veteran's records from the Social Security Administration (SSA), as the April 1997 VA examiner indicated that he was receiving SSA disability. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran identify any outstanding treatment records relevant to his claim. After securing any necessary authorization from him, obtain all identified treatment records, as well as any available VA treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records. 2. Obtain all available records from the Social Security Administration pertaining to the Veteran's disability benefits. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records. 3. Because the Veteran is currently living outside of the United States, make any reasonable efforts to have the Veteran examined, to include arranging an examination through the American consulate or Embassy in Thailand. All attempted efforts should be clearly documented in the claims file. The VA examination should be scheduled to determine whether his 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). Note: The criteria for establishing the need for aid and attendance include 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 aid; 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, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers inherent in his/her daily environment. The evidence need only establish that the Veteran is so helpless as to need regular aid and attendance, not constant need. The examiner must also state whether the Veteran's service-connected disabilities, either singularly or jointly, render him permanently housebound, i.e., substantially confined to his dwelling or immediate premises, or if institutionalized, to the ward or clinical areas. The entire claims file must be made available to the examiner, and the examination report should include discussion of his documented medical history and assertions. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests and studies deemed necessary by the examiner are to be undertaken 4. After completing the above, and 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 claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his 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 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). _________________________________________________ M. E. LARKIN 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).