Citation Nr: 1340349 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-34 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board notes that the Veteran's claim for special monthly compensation originally included special monthly compensation for the loss of use of his legs, but the Veteran withdrew that claim in his substantive appeal received in December 2012. In his notice of disagreement received in March 2010, the Veteran also contended that he has an astrocytoma tumor of the brain that is also related to service, including aggravation by his PTSD. The issue of service connection for an astrocytoma tumor of the brain has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 has service- connected PTSD rated at 100 percent and contends he requires the assistance of another person with his activities of daily living. Both he and his wife state that she has to help him with his prescribed medications for PTSD. The Veteran is also service connected for residuals of a gunshot wound to the left fifth toe, currently evaluated at 10 percent, tinnitus, currently evaluated at 10 percent, residuals of a scar from a gunshot wound of the right shoulder, currently rated as noncompensable, and a scar residual of a shell fragment wound of the left anterior leg, currently rated as noncompensable. The Veteran has other nonservice-connected medical diagnoses such as an astrocytoma tumor of the brain, a colostomy, and a seizure disorder. Special monthly compensation is payable to a Veteran who needs regular aid and attendance of another person, or if not in need of aid and attendance, by reason of being housebound. Where a Veteran does not meet the qualifications for aid and attendance, housebound benefits may be applicable. The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a) provides factors to be considered in determining the need for regular aid and attendance due to service connected disabilities. The special monthly compensation at the housebound rate provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and: (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) Is permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350(i). Thus, while the Veteran is 100 percent disabled due to PTSD, he does not have an independently ratable, separate, and distinct disability rated at 60 percent. Therefore, he does not meet the first prong under § 3.350(i). He is, however, eligible for house bound benefits under the second requirement if he is permanently housebound by reason of his service connected disabilities. Although VA has received in August 2009 a report from the Veteran's primary care provider, there has not been a full VA examination to determine if the Veteran can protect himself from the hazards and dangers of his daily environment or otherwise meets the eligibility for aid and attendance under § 3.351(b) or house bound benefits under § 3.350(i) due to his service-connected disabilities. The Board has determined that a VA examination should be provided and the VA examiner must offer an opinion on whether the Veteran needs the regular aid and attendance of another person and whether he is housebound, considering the Veteran's service-connected disabilities: Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine whether the Veteran requires the permanent regular aid and attendance of another person and/or whether the Veteran is housebound due solely to the service-connected disabilities: PTSD, residuals of a gunshot wound to the left fifth toe, tinnitus, residual scar from a gunshot wound of the right shoulder, and residual scar from a shell fragment wound of the left anterior leg. The claims folder must be made available to the examiner for review in conjunction with the examination. The assessment should include the current level of severity of his disabilities and whether his physical nonservice-connected disabilities aggravate one or more of his service-connected disabilities such that when the service-connected disability is aggravated, the Veteran requires the assistance of another to protect himself from the hazards or dangers incident to his daily environment because of his service-connected mental and/or physical disabilities. The assessment should include whether or not the Veteran is able to dress himself, keep himself ordinarily clean and presentable, feed himself, or attend to the wants of nature; also whether or not the Veteran is physically and mentally able to protect himself from the hazards or dangers incident to his daily environment. 2. After the requested development has been completed, adjudicate the claim for special monthly compensation. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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. 2013). _________________________________________________ U. R. POWELL 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) (2013).