Citation Nr: 1328509 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 12-18 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES Entitlement to increased dependency and indemnity compensation based on the need for the regular aid and attendance of another person or on account of being housebound. ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty in the Special Philippine Scouts from August 1946 to May 1949. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) is from a November 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Manila, Philippines. 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). 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 In October 2002, appellant was granted dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1318 based on the Veteran being continuously rated 100 percent disabled for 10 years prior to his death. She filed her instant claim seeking aid and attendance due to the severity of her own illness in October 2010. Following the denial of her claim in November 2010, she submitted a disagreement to the RO in February 2011. In it, she did state her belief that there was "CUE" in the November 2010 rating decision, and that corrective action was needed. She set forth her disagreement with the November 2010 decision, stating in essence that the medical certificate she submitted from her physician supported her claim that she was severely disabled and in need of aid and attendance due to the effects of adenocarcinoma. In February 2011, the RO issued a rating decision stating there was no CUE, or clear and unmistakable error, in the November 2010 rating decision. In March 2011, the appellant offered further argument that the November 2010 decision was erroneous and that her condition qualified her medically for aid and attendance benefits. She offered further argument in July 2011, stating that she was willing to be examined if need be to prove her case. In June 2012, the RO issued a statement of the case (SOC) indicating that the November 2010 rating decision did not contain CUE. The appellant submitted a substantive appeal form in July 2012. An unappealed decision of the RO becomes final and binding and is not subject to revision on the same factual basis in the absence of CUE. Previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). In the instant case, the RO mischaracterized the issue on appeal in the SOC. The November 2010 decision was not final when the appellant submitted her disagreement in February 2011. By filing a document, which the Board construes as a notice of disagreement, the decision did not become final and thus was not subject to revision on the basis of CUE. An appeal to the Board is initiated by a Notice of Disagreement (NOD) and completed by a substantive appeal after a SOC is furnished. In essence, the following sequence is required: There must be a decision by the RO; the claimant must timely express disagreement with the decision; VA must respond by issuing an SOC; and finally the claimant, after receiving the SOC, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200 , 20.201, 20.202 and 20.203. The Board finds that, in submitting her February 2011 statement, the appellant was disagreeing with the November 2010 rating decision, and that she has in fact completed the appeal process by timely filing her timely substantive appeal. Under the circumstances, the case should be returned to the RO or the AMC so that a supplemental statement of the case (SSOC) may be issued on the issue of entitlement to increased DIC based on the need for the regular aid and attendance of another person or on account of being housebound. Moreover, prior to the issuance of the SSOC, the RO or the AMC should arrange for the Veteran to undergo an examination for aid and attendance and housebound status. Accordingly, the case is REMANDED for the following action: (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.) 1. The appellant should be afforded a VA examination to determine the whether she is in need of aid and attendance or whether she is housebound as defined by VA. The claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, an appropriate examiner should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the appellant's disabilities are sufficient by themselves to render her so helpless as to require the aid and attendance of another person on a regular basis. The examiner should also address whether it is at least as likely as not that the appellant is permanently housebound (i.e., substantially confined to her home or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime). The supporting rationale for all opinions expressed must be provided. 2. The RO or the AMC should ensure the examination report is adequate and undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the appellant's satisfaction, a Supplemental Statement of the Case should be furnished to the appellant and she should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). _________________________________________________ S. S. TOTH 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).