Citation Nr: 1334609 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-32 888 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement special monthly compensation (SMC) based on the need for the regular aid and attendance of another person (A&A). 2. Entitlement to an aid and attendance allowance for the Veteran's spouse. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from December 1950 to December 1970. This appeal to the Board of Veterans' Appeals (Board) initially arose from a June 2011 rating decision in which the RO, inter alia, denied the Veteran's claim for SMC as well as his claim for an aid and attendance allowance for his spouse. The Veteran filed a notice of disagreement (NOD) in August 2011. A statement of the case (SOC) was issued in November 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in December 2011. In November 2012, the Veteran and his wife testified during a hearing before a Decision Review Officer at the RO; a transcript of that hearing has been associated with the claims file. In July 2013, subsequent to the issuance of the May 2013 supplemental statement of the case (SSOC), the Veteran submitted additional evidence in support of his claims. Initial RO consideration of this evidence was waived by the Veteran's representative in July 2013. See 38 C.F.R. §§ 20.800, 20.1304 (2013). In response to the Veteran's request for a Board hearing, such hearing was scheduled for August 2013. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). In October 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veterans claim. A review of the documents in such folder reveals VA treatment records dated through April 2013; such records were considered in the May 2013 SSOC. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claims on appeal is warranted. The Veteran contends that he and his wife require the assistance of another person in performing his activities of daily living, including assistance in performing housework and yard work. Initially, the Board notes that the Veteran has been in receipt of special monthly compensation under the provisions of 38 U.S.C.A. § 1114(s) (West 2002) and 38 C.F.R. § 3.350(i) (2013) based on being housebound, since January 1997. SMC at the aid and attendance rate is payable when a Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2013). Increased compensation is payable to a veteran by reason of the veteran's spouse being in need of aid and attendance. 38 U.S.C.A. § 1115(E) (West 2002); 38 C.F.R. § 3.351(a)(2) (2013). Pursuant to 38 C.F.R. § 3.350(b)(3) and (4) (2013), the criteria for determining that a Veteran, or his spouse, is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a) (2013). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through the 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 or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. In February 2011, the Veteran was afforded a VA examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The Veteran was noted to be not hospitalized, not bedridden, and without best corrected vision of 5/200 or worse. He was noted to be able to self-feed, toilet, bathe, groom and dress but that he was unable to perform housework. It was noted that he was unable to drive, that he used a cane at all times to ambulate and that he was unable to ambulate for more than a few feet at a time. The examiner determined that the Veteran required the daily personal health care services of a skilled provider without which the Veteran would require hospital, nursing home or other institutional care; no rationale was provided for this determination and the physician did not relate his findings to the provisions of 38 C.F.R. § 3.352(a). The Board also notes the September 2011 opinion from the Veteran's private orthopedist which stated that his disabilities prevented him from performing certain activities such as mowing, yard work and shoveling; however, the physician listed nonservice-connected disabilities in support of this determination. In addition, the Board notes the June 2013 opinion from the Veteran's private physician which indicated that it was "medically appropriate" for the Veteran to pursue assistance for activity of daily living but did not identify which disabilities caused such a need. VA Housebound Status or Permanent Need for Regular Aid and Attendance examination reports submitted in December 2010, which were completed by a VA physician and a private physician, indicated that the Veteran was able to feed himself. However, the reports indicated that the Veteran was both able and unable to prepare his own meals, both able and unable to tend to his hygiene needs, that he both required and did not require medication management and that he was both able and unable to manage his own financial affairs. In sum, the other opinions of record appear to be contradictory and the conclusions rendered, therefore, were seemingly incomplete. Thus, the Board finds that these opinions are inadequate to resolve the claim. With regard to the claim for an aid and attendance allowance for the Veteran's spouse, a VA examination for Housebound Status or Permanent Need for Regular Aid and Attendance report, which appears to have been completed by a private physician, was submitted in December 2010. This report indicated that the Veteran's spouse was unable to stand or walk due to low back pain with radiation to the legs but also indicated that the assistance of an aid or another person was not required for locomotion. In addition, a June 2013 opinion from a private physician indicated that it was "medically appropriate" for the Veteran's spouse to pursue assistance for activity of daily living but did not explain why such assistance would be required. Thus, the Board finds that the opinions are inadequate to resolve the claim. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Under these circumstances, the Board finds that additional medical information-based on full consideration of documented medical history and oral and written assertions of the Veteran and his wife, and supported by clearly-stated rationale-are needed to resolve the claim for special monthly compensation based on need for regular aid and attendance, as well as the claim for an aid and attendance allowance for the Veteran's spouse. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should attempt to obtain an addendum opinion from the prior VA examiner of the Veteran (or, arrange for further examination, as needed), and arrange for the Veteran's wife to undergo VA examination..The Board emphasizes that any failure to report to a scheduled examination, without good cause, may well result in denial of the claim(s) for increase on appeal. See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If there is a failure to report to a scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent by the pertinent VA medical facility. Prior to obtaining further medical information in connection with these claims, to ensure that the record is complete, and that all due process requirements are met, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As for VA records, the claims file reflects that the Veteran has been receiving treatment for his various disabilities from the VA Medical Center (VAMC) in Omaha, Nebraska and that records from that facility dated through April 2013 are associated with the file; however, more recent records may exist. 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). Hence, the RO should obtain all records of pertinent treatment from the Omaha VAMC (since April 2013) for the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claims should include consideration of all additional evidence added to the record since the last adjudication of these claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Omaha VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since April 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all pertinent, outstanding private medical records. Clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records to the examiner who provided the September 2011 opinion for an addendum opinion. The examiner should render specific findings as to whether the Veteran is able to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he is unable to attend to the wants of nature; whether he suffers from incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment; and whether he is bedridden, i.e., whether his service-connected disabilities, through their inherent character, actually require that he remain in bed. Additionally, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that, the Veteran's service-connected disabilities, alone, result in either: (1) the loss or loss of use of his both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (2) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (3) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow. (The term 'preclude locomotion' means the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible.) In evaluating the Veteran's service-connected disabilities, the physician should, to the extent possible, distinguish symptoms attributable to the service-connected disabilities from those attributable to any other disability for which service connection has been established. If the September 2011 examiner is not available, or further examination of him is deemed warranted, arrange for the Veteran to undergo examination, by an appropriate physician, to obtain responses to the questions and comments posed above. In such instance, the entire claims file, to include a complete copy of this REMAND, and copies of any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should set forth all examination findings (if any), along with complete rationale for any conclusions reached, in a printed (typewritten) report. 5. Also after all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran's spouse to undergo VA A&A/housebound examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, and copies of any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran's spouse, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings as to whether the Veteran's spouse is able to dress or undress herself, or to keep herself ordinarily clean and presentable; whether she is unable to attend to the wants of nature; whether she suffers from incapacity, physical or mental, which requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment; and whether she is bedridden, i.e., whether her disabilities, through their inherent character, actually require that she remain in bed. Additionally, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disabilities result in either: (1) the loss or loss of use of his both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (2) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (3) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow. (The term 'preclude locomotion' means the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible.) The examiner should set forth all examination findings, along with complete rationale for any conclusions reached, in a printed (typewritten) report. 6. If the Veteran and/or his spouse fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent the pertinent VA medical facility. 7. To help avoid future remand, ensure that all 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. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 9. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that the appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).