Citation Nr: 1324323 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11-31 824 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his daughter ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in this appeal. He had active service from February 1943 to January 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Regional Office (RO) in Nashville, Tennessee, which denied special monthly compensation based on the need for regular aid and attendance or at the housebound rate. In September 2011 during the appeal, the RO, in pertinent part, determined that a December 2003 rating decision was clearly and unmistakably erroneous in rating the service-connected pulmonary and cardiovascular disorders as a single disability; granted a separate 60 percent evaluation for coronary artery disease; granted special monthly compensation at the housebound rate under the provisions of 38 U.S.C.A. § 1114(s)(1); and effectuated the awards as of June 18, 2002. In May 2013, the Veteran was afforded a hearing before the undersigned Veterans Law Judge in Nashville, Tennessee. A hearing transcript was prepared and incorporated into the record. The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. Please note 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). REMAND During the pendency of the appeal, the RO established special monthly compensation at the housebound rate under the provisions of 38 U.S.C.A. § 1114(s) (West 2002) and effectuated the award as of June 18, 2003. The Board observes that 38 U.S.C.A. § 1114(s) provides special monthly compensation at the housebound rate of $2993.00, whereas 38 U.S.C.A. § 1114(1) awards special monthly compensation based on the need for regular aid and attendance of $3,327.00. As 38 U.S.C.A. § 1114(l) provides a greater monetary benefit, the Board has recharacterized issue as entitlement to special monthly compensation based on the need for regular aid and attendance. The Veteran asserts that special monthly compensation based on the need for regular aid and attendance is warranted as he requires the assistance of others in performing his activities of daily living. In reviewing the record, it is unclear whether the Veteran is currently a resident of a nursing home or other long-term health care facility. Such question needs to be resolved before deciding eligibility for special monthly compensation based on the need for regular aid and attendance of another, especially when such compensation would be for the purpose of providing aid and attendance for the Veteran at his home where nursing home care is not yet required. Some evidence suggests the Veteran may currently reside in a nursing home or other long-term health care facility. A December 2012 VA hospital summary and associated clinical documentation indicates that the Veteran fell and sustained right tibial and fibular fractures. The Veteran's spouse reported that: the Veteran "was an active driver prior to admission;" went "to the store daily and had been unable to bring back what she asked him to buy;" had forgotten to turn off the car after he returned home on several occasions; and his "unassisted ADLs include eating, driving, and walking (occasionally with a cane)." Treating VA medical personnel noted that the Veteran's wife had indicated to the Veteran "that if he was unable to care for himself, she would have to send him to a nursing home." In a December 29, 2012 written statement, the Veteran's spouse conveyed that the Veteran was currently in a nursing home as she was unable to take care of him. A December 2012 entry in the record states that the Veteran was admitted to the Quince Nursing and Rehabilitation Center on December 31, 2012. The evidence is not clear as to whether the Veteran required the nursing home care or rehabilitation care for a limited period due to the December ankle injury accident, or whether he was admitted to nursing home care on a more extended or permanent basis. At the May 2013 hearing before the undersigned Veterans Law Judge, the Veteran testified that he lived at home. Clinical documentation and other records from Quince Nursing and Rehabilitation Center are not of record. VA should obtain all relevant VA and private documentation which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to whether he currently resides in a long-term health care facility and to report all his medical treatment after December 2012, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact Quince Nursing and Rehabilitation Center and all other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If the identified documentation is not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after December 2012. 3. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's appeal. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. 4. Please note, 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 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. § 5109B, 7112 (West 2002). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).