Citation Nr: 1329582 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-16 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to special monthly pension based on the need for regular aid and attendance or housebound status. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from March 1951 to June 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of April 2011, which granted entitlement to pension benefits, but denied entitlement to special monthly pension. 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 There is no allegation or evidence that the Veteran is a patient in a nursing home, or blind or nearly blind; therefore, question in this case is whether the Veteran has a factual need for regular aid and attendance of another person. 38 U.S.C.A. § 1502, 1521; 38 C.F.R. § 3.351. Determinations as to factual need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the veteran to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need to adjust prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability 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 and assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352. It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. The particular personal functions, which the veteran is unable to perform, should be considered in connection with his condition as a whole, and the need for aid and attendance must only be regular, not constant. Id. For a favorable rating, at a minimum, one of the enumerated factors must be present. Turco v. Brown, 9 Vet. App. 222, 224-5 (1996). The evidence of record at the time of the initial RO decision in April 2011, which included a January 2011 aid and attendance examination report from a private doctor, as well as a January 2011 VA aid and attendance examination report, clearly showed that aid and attendance was not needed at that time. However, evidence has been received since that decision, consisting of the Veteran's August 2012 written statement, another private aid and attendance examination report dated in June 2012, and a form completed in August 2012 by the Executive Director of the retirement community in which the Veteran lives, detailing services provided. This new evidence, while indicating that there may have been some increase in the Veteran's disability level since the prior evidence was compiled, is incomplete, and contains seeming inconsistencies which must be resolved prior to an appellate decision. In particular, the doctor's June 2012 aid and attendance examination report did not contain any diagnoses for the Veteran's disabilities, unlike his January 2011 report. He did, however, note that the Veteran had a history of falls, had fractured his pelvis 6 months earlier in a fall, and needed to be "watched" for his safety. The doctor also made the incongruous statement that the Veteran did not use any assistive devices, and could walk 5 to 6 blocks without assistance. Moreover, and without explanation, the doctor indicated that the Veteran could not manage his financial affairs. The retirement community director's statement noted that the Veteran lived in an independent living situation, and not in assisted living. According to the report, the community provides, to the Veteran, "supervision and properly secured living arrangements for a protected environment," "supervision to prevent wandering," but not "supervision to prevent Veteran from harming himself." These distinctions are not clear. In view of these factors, which suggest the possibility of some mental and/or physical decline since the prior, more thorough, evaluations, the Board finds that a VA aid and attendance examination must be obtained. In addition, to provide the examiner with a better overview of the Veteran's physical and mental status, and to avoid duplication of effort (such as having to repeat any tests, for example, of cognitive function, which have been performed elsewhere), the Veteran should be asked to identify and release pertinent medical records, and such records should be obtained. 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. Ask the Veteran to identify the names, locations, and approximate dates of any recent treatment (i.e., since March 2011) for all conditions which may impact his ability to function independently, in particular, records of his pelvic fracture treatment and follow-up care, as well as all records pertaining to his mental functioning, to include ability to manage his financial affairs, such as neuropsychiatric tests. Provide appropriate authorization forms (VA Form 21-4142) for the Veteran to complete and return, and give the Veteran a suitable period of time for response. 2. Make all necessary attempts, depending on the type of record identified, to obtain all records adequately identified. 3. Then, arrange for a VA aid and attendance examination, to determine whether the Veteran requires the actual regular aid and attendance of another person. This includes, but is not limited to, assessment of the following: * inability of the veteran to dress or undress himself or to keep himself ordinarily clean and presentable; * frequent need to adjust prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; * inability to feed himself through loss of coordination of upper extremities or through extreme weakness; * inability to attend to the wants of nature; * incapacity, physical or mental, which requires care and assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. The examiner should also address whether the Veteran is substantially confined to his premises, i.e., restricted to his residence except for medical treatment purposes. The claims folder must be provided to the examiner for review in connection with the examination. Any indicated tests, such as of cognitive functioning, must be obtained prior to the final examination report. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Thereafter, review the claim for special monthly pension based on the need for aid and attendance or housebound status, in light of all evidence of record. If the decision is less than a full grant of the benefits sought, the Veteran should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. 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 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). _________________________________________________ MICHAEL A. HERMAN 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).