Citation Nr: 1330783 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 13-08 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to special monthly pension (SMP) based on the need for aid and attendance or on account of being housebound. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from August 1972 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was subsequently transferred to the RO in St. Petersburg, Florida. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) paperless claims file. Additional VA treatment records dated to January 2013 are included in the Veteran's Virtual VA record and were considered in the January 2013 supplemental statement of the case. In June 2013, the Veterans submitted additional evidence to the Board. In an August 2013 Informal Hearing Presentation, the Veteran's representative waived agency of original jurisdiction (AOJ) consideration of this evidence. 38 C.F.R. § 20.1304(c) (2012). Nevertheless, given the need to remand for additional development, the AOJ will have the opportunity to consider such evidence. 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, D.C. VA will notify the Veteran if further action is required. REMAND A review of the record indicates that further development is necessary with respect to the issue on appeal. The Veteran is seeking entitlement to special monthly pension. He recently submitted additional VA treatment records dated in May 2013 showing that he has been diagnosed with right upper lung small cell carcinoma. While the AOJ has rated the Veteran's other nonservice-connected disorders, it has not rated this disability. As such, the AOJ should review the medical evidence and assign an appropriate rating for the Veteran's lung cancer and any other nonservice-connected disorders that have not yet been rated. Moreover, the record shows that the Veteran receives continuous treatment at the VA facility in Bay Pines, Florida. As noted above, the Veteran submitted treatment records dated in May 2013. The most recent treatment records associated with his Virtual VA record are dated from January 2013. Additionally, the Veteran submitted records from Lee Memorial Hospital. Therefore, on remand, he should be requested to identify any VA or non-VA healthcare providers who have treated him and, thereafter, all such records, to include VA treatment records from the Bay Pines VA facility dated from January 2013 to May 2013 and from May 2013 to the present, should be obtained for consideration in his appeal. Lastly, the Board notes that the Veteran submitted a May 2013 examination for housebound status or permanent need for regular aid and attendance that was completed by the Veteran's VA physician . The AOJ should review the records obtained in connection with the aforementioned requests and conduct any additionally indicated development, to include affording the Veteran another VA examination or opinion, deemed necessary for the adjudication of such claim. 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 AOJ should request that the Veteran identify all VA and non-VA healthcare providers who have treated him. After obtaining any necessary authorization forms, obtain all identified records, to include VA treatment records from the Bay Pines VA facility dated from January 2013 to May 2013 and May 2013 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The AOJ should review the medical evidence and assign an appropriate rating for the Veteran's lung cancer and any other nonservice-connected disorders not yet rated. 3. After completing the above, AOJ should review the records obtained in connection with the aforementioned request and conduct any additionally indicated development, to include affording the Veteran another VA examination or opinion, deemed necessary for the adjudication of the Veteran's SMP claim. 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 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 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). _________________________________________________ A. JAEGER 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).