Citation Nr: 1417339 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 09-27 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to special monthly dependency and indemnity compensation (SMC or increased DIC) based on the need for regular aid and attendance (A&A) or by reason of being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from March 1941 to February 1947, from February 1955 to January 1964, and from March 1964 to October 1968. The Veteran died in July 2003, and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 2010, the Board remanded the claim for additional development. A September 2011 Board decision on this issue was vacated and remanded by an August 2013 decision issued by the United States Court of Appeals for Veterans Claims (Court). As such, this issue now returns before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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, DC. VA will notify the appellant if further action is required. REMAND Regretfully, the Board finds that a further remand is warranted in this case. As noted above, a September 2011 Board decision denying this claim was vacated and remanded by an August 2013 Court decision. The Board's decision was vacated at that time because the Court felt that the Board had failed to adequately address all relevant evidence of record. Specifically, the Court appears to have stated that while the Board adequately recited all the favorable evidence of record, it found that the Board had not adequately discussed all of this evidence in their reasons and bases. As such, the Board has remanded the case. At this time, the Board notes that the appellant was last evaluated for this claim in December 2010, over three years ago. While the Board did not find the appellant to have sufficient disability in its prior decision to render a grant of entitlement to aid and attendance or housebound, the Board is of the opinion that the appellant's disabilities are of such a nature as to make it likely that her condition may have increased in severity since that time. As such, the Board finds that a remand is in order, such that the appellant may be provided with an additional aid and attendance examination to determine her current level of disability. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO/AMC should schedule the appellant for a VA examination by an appropriately qualified physician to determine whether she requires regular aid and attendance or is housebound. The following considerations will govern the examination(s): (a) The claims folder, and a copy of this remand will be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. (b) The examiner should provide an opinion as to whether the appellant requires the regular aid and attendance of another person to perform daily self-care tasks such as bathing, dressing, attending to the wants of nature, or feeding herself, or to protect her from the hazards of her daily environment. (c) The examiner should provide an opinion as to whether the appellant is substantially confined to her house or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout her lifetime. A rationale for any opinion expressed should be provided. The examiner should also specifically comment on the findings contained in the prior December 2010 examination. If the examiner is unable to state an opinion without a resort to speculation, he or she should so state. Any other necessary examinations must be conducted, if deemed necessary by the examiner or by the RO/AMC. 2. The RO/AMC will readjudicate the issue of entitlement to SMC for aid and attendance or housebound status. The RO/AMC must ensure that all directed factual and medical development as noted above is completed. In the event that the examination report does not contain sufficient detail, the AMC/RO must take any appropriate action by return of the report to the examiner for corrective action. See 38 C.F.R. § 4.2 (2013) (if the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 3. If the benefit sought on appeal is not granted to the appellant's satisfaction, she and her representative should be provided with an appropriate Supplemental Statement of the Case, which sets forth the applicable legal criteria pertinent to this appeal. She should then be given an opportunity to respond. 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). _________________________________________________ LANA K. JENG Acting 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).