Citation Nr: 1331545 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-01 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to special monthly compensation based on the need for aid and attendance of another or being housebound. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to February 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's claims for entitlement to special monthly compensation based on the need for aid and attendance of another or being housebound, special home adaptation grant, specially adapted housing, and automobile and adaptive equipment or for adaptive equipment only. In October 2012 the Board denied the appellant's appeal. Thereafter, the appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2013 Order pursuant to a Joint Motion for Partial Remand filed by the Veteran and the Secretary, the Court vacated and remanded the Board's decision only as to the issue of entitlement to special monthly compensation based on the need for aid and attendance of another or being housebound. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The documents in the electronic file include an August 2013 Appellate Brief Presentation from the Veteran's representative. In August 2013 the Veteran again raised the issues of entitlement to service connection for Meniere's disease, dizziness, PTSD, depression, stomach cramps, and diarrhea. Since that time, these issues have not been adjudicated by the agency of original jurisdiction, and the Board does not have jurisdiction over them. Therefore, they are referred to the agency of original jurisdiction for appropriate action. They are intertwined with the issue currently on appeal and development must be taken as set forth below. 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 The Veteran contends that as a result of his service, he has current disabilities that require the aid and attendance of another or render him housebound. VA records show service connection is currently established for bilateral hearing loss (100 percent) and tinnitus (10 percent). His combined service-connected disability rating is 100 percent. In written statements, the Veteran has described the difficulty he has with mobility, functioning socially, and performing basic self-care, such as dressing or bathing himself. As noted above, the Veteran has raised service connection for multiple other disorders. If service connection were to be established for any of the disorders, it could impact the facts on the issue on appeal. Therefore, those issues will have to be developed prior to development and readjudication of the appellate issue. In a June 2005 report of examination for housebound status or permanent need for regular aid and attendance, the examiner remarked that the Veteran was quite debilitated due to combination of prior stroke and vertigo. The examiner explained that vertigo limited the Veteran's activities of daily living and ability to ride in a vehicle and that the Veteran required a wheelchair to traverse any significant distance. Reported diagnoses included labyrinthitis/tinnitus, status post cerebrovascular accident, hypertension, and high lipids. The Veteran complained of daily vertigo and left arm and leg weakness since having a stroke in 2005. The Veteran has also submitted an August 2008 statement from a general practitioner physician which indicates that the Veteran is unable to prepare meals, dress, bathe, stand, attend the needs of nature, or attend to financial matters without assistance, and requires 18 hours or more of sedentary rest per day. In June 2010 the Veteran was scheduled for a VA examination following his claim for entitlement to service connection for additional disabilities. The Veteran did not appear for this examination. As such, the Board proceeded to decisions on the appellate issues. In an August 2013 correspondence, the Veteran indicated that he had not appeared for the examination because he had believed that he would be picked up by a VA van, but one did not come for him, and he was unable to transport himself to the examination. The Veteran has not yet been afforded a VA examination specifically for the purpose of evaluating his housebound status or permanent need for regular aid and attendance. While this matter is on remand, the RO/AMC should also give the Veteran another opportunity to present information or evidence pertinent to the claim on appeal. Review of the record indicates that the Veteran has received private treatment for hearing loss, tinnitus, and other inner-ear related disorders, but no private treatment records have been associated with the claims file since 2007. The RO/AMC should request that the Veteran provide, or provide any necessary authorization for the RO/AMC to obtain, any outstanding records of pertinent private medical evaluation or treatment. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159 (2012). Additionally, a review of the record reveals that the Veteran has been receiving continuing regular medical treatment for hearing loss and complications related to tinnitus from the Durham VA Medical Center (VAMC) and its affiliated facility, the Greenville Community-Based Outpatient Clinic (CBOC). The claims file currently includes outpatient treatment records dated up to April 2009. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). All pertinent medical records should be associated with the claims file for the record to be complete. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159. Finally, a review of the record indicates that there may be temporary folders being maintained at the RO on behalf of the Veteran. If so, these folders should be associated with the claims file, so that all documents pertaining to the current claim may be reviewed before any further adjudication is performed. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should locate and associate with the claims file any temporary folders that are being maintained at the RO on behalf of the Veteran. 2. The RO/AMC should send to the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization to enable it to obtain any additional private medical evidence pertinent to the appeal that is not currently of record. Approximate dates of treatment should be requested as needed. After the Veteran has signed any appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. He should be notified of any unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records. 3. The RO/AMC should obtain from the Durham VAMC and all affiliated facilities, including the Greenville CBOC, all outstanding, pertinent records of treatment since April 2009. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) and associate all records with the claims file. If the RO/AMC cannot obtain any records, a notation to that effect should be inserted in the file, and the Veteran should be notified of any unsuccessful efforts in this regard. 4. Develop the issues for which service connection is sought as set out in the introduction, to include PTSD and Meniere's syndrome. After development, including notice, exams, and opinions as needed, adjudicate the issues of service connection on all indicated theories, to include secondary service connection as indicated. 5. Thereafter, the RO/AMC should schedule the appellant for a VA aid and attendance and housebound status examination. The claims file, including access to Virtual VA, must be made available to and reviewed by the examiner. The examiner is requested to indicate whether the Veteran, as a result of service-connected disabilities (including any granted pursuant to the preceding paragraph), is permanently bedridden or so helpless as to be in need of regular aid and attendance of another person on a regular basis. In making this determination, the examiner is requested to discuss the Veteran's ability for self-care due to service connected disorders. The examiner should also indicate whether, as a result of service-connected disabilities, the Veteran is substantially confined to his dwelling and immediate premises. A complete rationale must be provided for any opinion offered. 6. If the Veteran is unable to attend an in-person VA examination, then the Veteran's claims file should be forwarded to a VA examiner with sufficient expertise to determine the Veteran's level of impairment for his service-connected disabilities based on a review of the claims file alone. The claims file, including access to Virtual VA, must be made available to and reviewed by the examiner. Based on all prior examination results and the review of the record, an appropriate examiner should provide an opinion as to whether the Veteran, as a result of service-connected disabilities, is permanently bedridden or so helpless as to be in need of regular aid and attendance of another person on a regular basis. In making this determination, the examiner is requested to discuss the Veteran's ability for self-care. The examiner should also indicate whether, as a result of service-connected disabilities, the Veteran is substantially confined to his dwelling and immediate premises. A complete rationale must be provided for any opinion offered. 7. The RO/AMC must ensure that all opinion reports fully comply with this remand and the questions presented in the request. The RO/AMC must ensure that the examiners documented their consideration of all records and that all additional requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. Following the completion of the above, the RO/AMC should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ MICHAEL D. LYON 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).