Citation Nr: 1338734 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-21 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance, for purposes of substitution. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1963 to November 1965. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In that rating, the RO granted the Veteran's claim for nonservice-connected pension, effective from September 2007. The RO also granted special monthly pension (SMP) based on housebound status, also effective from September 2007, but denied the Veteran's claim of entitlement to SMP based on the need for regular aid and attendance. The Veteran died in July 2010. The appellant timely requested that she be substituted for the Veteran. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (amending the law to allow substitution in cases involving claimants who die on or after October 10, 2008) (codified at 38 U.S.C.A. § 5121A (West Supp. 2013)). Such request must be filed not later than one year after the date of the veteran's death. Id. As provided in the law, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) ...." Id. VA has allowed the appellant's substitution in the Veteran's case that was on appeal. Therefore, the appellant has been substituted for the Veteran. The appellant retains the Veteran's docket number before the Board. In addition to the paper claims file, there is an electronic file associated with the claim. The electronic file does not currently contain evidence pertinent to the claim that is not already included in the paper claims file. In December 2012, the Pension Management Center in St. Paul, Minnesota issued a determination in which the appellant's claim for accrued benefits was denied. As the appellant has apparently not initiated an appeal of that issue, and as the time to appeal has not yet run, that issue is not before the Board. However, the issue of entitlement to SMP based on the need for regular aid and attendance on a substituted basis remains before the Board. 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 general, accrued benefits are periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C.A. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Accrued benefits are payable to a Veteran's surviving spouse, or other qualified claimant, if no surviving spouse exists. There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary and claims regarding substitutions of claimants in the case of death of a claimant. 38 U.S.C.A. § 5121, 5121A. When adjudicating the accrued benefits claims, only the evidence record at the time of death may be considered as the basis for a determination on the merits of the claim. When a properly qualified substitute claimant continues the pending claim in the footsteps of the Veteran after death, additional development of the record may be undertaken if deemed appropriate or necessary to adequately adjudicate the merits of the claim. A substitute claimant may submit additional evidence in support of the claim. Also, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence for substituted claimants. Thus, it is to the appellants' benefit to have the claim adjudicated as a substitute claimant pursuant to 38 U.S.C.A. § 5121A, rather than pursuant to 38 C.F.R. § 5121. The appellant was substituted as a claimant in an August 2011 determination. At the time of the Veteran's death, he had a pending claim for special monthly pension based on the need for regular aid and attendance; that claim was originally filed in September 2007. The claims file contains the Veteran's VA medical treatment records dated between October 1998 and July 2006, as well as records dated in March and April of 2009. However, the evidence of record includes documents which indicate that the Veteran received VA treatment between July 2006 and March 2009. The associated records have not been included in the evidence of record. In addition, the evidence of record indicates that the Veteran was admitted to a private assisted living facility in September 2007, and that he continued to live in such a facility, apart from some treatment in a skilled nursing unit, until his terminal hospitalization. However, only one month's worth of the assisted living facility records have been included in the claims file and no records from the skilled nursing unit or the terminal hospitalization have been included. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). Furthermore, VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore in order to fulfill the duty to assist, all of the Veteran's VA and private inpatient, outpatient, assisted living and skilled nursing facility records from September 2007 onward not currently of record must be obtained and associated with the claims file. The Veteran was service-connected for hearing loss (rated zero percent disabling), tinnitus (rated 10 percent disabling), the residuals of a left ring finger injury (rated zero percent disabling) and the residuals of a fractured right ankle (rated 10 percent disabling) prior to his death. The evidence of record reflects that, as of September 2007, he had been given diagnoses of diabetes mellitus with peripheral neuropathy, Stage III chronic kidney disease, hypokalemia, peripheral vascular disease, hypertension, chronic obstructive pulmonary disease (on oxygen), glaucoma, bipolar disorder, depression, cellulitis, gout, dermatophytosis, methicillin-resistant Staphylococcus aureus (MSRA) infection and status post aortic valve replacement (AVR) on coumadin therapy. Relevant regulations provide that when an otherwise eligible veteran is in need of the regular aid and attendance of another person, an increased rate of pension shall be payable. 38 U.S.C.A. § 1521(d). For pension purposes, a person shall be considered in need of regular aid and attendance if such person is (1) a patient in a nursing home on account of mental or physical incapacity, or (2) helpless or blind, or so near helpless or blind as to need the regular aid or attendance of another person. 38 U.S.C.A. § 1502(b); 38 C.F.R. § 3.351. Determinations as to the need for aid and attendance must be based on a veteran's actual requirements of personal assistance from others. In making such determinations, the provisions of 38 C.F.R. § 3.352 dictate that consideration be given to such conditions as the inability of a claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; the inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. The term "bedridden" will be a proper basis for the determination and that term is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). The Board feels that a VA medical opinion would be useful in determining whether the Veteran was in need of aid and attendance at any time between September 2007 and his death. In this case, there is evidence of record to indicate that the Veteran was experiencing difficulty with his activities of daily living. For example, there is private medical evidence that reflects the Veteran's need for a wheelchair due to a history of falls (in part due to peripheral neuropathy of the lower extremities), need for assistance dealing with his oxygen supply, need for transport assistance to his meals and need for assistance with bathing. The duty to assist requires medical examination when such examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). In light of the existence of credible evidence of symptoms relating to the Veteran's capacity to accomplish activities of daily living and to his ability to protect himself from hazards or dangers incident to his daily environment, the Board finds that the duty to assist in this case requires that a VA medical opinion should be obtained on remand. These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Appeals for Veterans Claims (Court) has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Accordingly, to ensure that VA has met its duty to assist in developing the facts pertinent to the claim remaining on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Obtain any VA inpatient and outpatient records not already in the claims file relating to treatment of the Veteran, beginning in September 2007. These records must be associated with the claims file, with documentation of any inability to secure them. The appellant and her representative must also be informed of any negative results. 3. Contact the appellant to obtain the names and addresses of all private or other government health care providers and treatment centers where the Veteran was treated from 2007 onward. After securing the necessary release(s), obtain those records that have not been previously secured. In particular, obtain the records from any assistive living facility, skilled nursing unit or hospital, to include Edgewood Village and MeritCare Health System. These records must be associated with the claims file, with documentation of any inability to secure them. The appellant and her representative must also be informed of any negative results. 4. After completing any additional notification and/or development action deemed warranted by the record, arrange for review of the claims file by an appropriate health care provider in order to determine the nature and extent of the Veteran's various medical conditions and to determine whether the Veteran had a need for regular aid and attendance between 2007 and his death. The associated report must be of sufficient detail that the rating criteria for mental disorders, pulmonary disorders, diabetes, neurologic disorders, cardiovascular disorders and skin disorders may be applied. The reviewer is asked to describe all the Veteran's health problems from 2007 onward, both mental and physical, and their impact on his ability to perform the functions of daily living. The reviewer must review the claims file and all relevant electronic medical records for the Veteran. All subjective complaints and objective findings should be reported in detail. The reviewer must address the specific questions/concerns of an aid and attendance/housebound examination, including whether the Veteran was able to feed, dress himself, attend to the wants of nature, ambulate outside the home without assistance, protect himself from dangers in his environment, etc., and specify what disabilities were implicated in his inability, if any, to perform such self-care tasks. 5. Upon receipt of the report from the VA reviewer, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, refer the report to the VA reviewer for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 6. After all appropriate development has been accomplished, consider all of the evidence of record and re-adjudicate the SMP aid and attendance claim. If the benefit sought on appeal remains denied, the appellant must be provided a supplemental statement of the case (SSOC) and given an appropriate period of time for response. 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).