Citation Nr: 1504728 Decision Date: 02/02/15 Archive Date: 02/09/15 DOCKET NO. 10-44 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person, or on account of being housebound. REPRESENTATION Appellant represented by: David F. Chalela, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 decision of the Department of Veterans Affairs (VA) RO. The record before the Board consists of the Veteran's electronic files in programs known as Virtual VA (VVA) and Veterans Benefits Management System (VBMS). The Veteran provided testimony before the undersigned at a Travel Board hearing held at the RO in October 2014. The issue of entitlement to service connection for traumatic brain injury, including as secondary to posttraumatic stress disorder (PTSD) has been raised by the record in the October 2014 hearing testimony, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). As discussed in greater detail below, the record indicates that the Veteran filed a notice of disagreement (NOD) with an April 2013 rating decision which denied specially adapted housing, increased ratings for hernia/stomach disability and right ear hearing loss, service connection for right leg amputation, hearing loss left ear, removal of colon polyp, vestibular disorder and vision disorder. As the record reflects that the RO has acknowledged receipt of the NOD, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable in this case as to these claims. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Special monthly compensation is payable if, as the result of service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining a need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be able to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, requiring care or assistance on a regular basis to protect the claimant from the disabling conditions enumerated in this paragraph. The particular personal functions which the veteran 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 veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance, will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a) (2014). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court of Appeals for Veterans Claims (Court) held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco, 9 Vet. App. 222, 224. The evidence must show that the claimant is so helpless as to need regular and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352(a). The Veteran is service connected for PTSD, rated 100 percent; post-operative residuals of hernia/ stomach condition, rated 20 percent; residuals of shell fragment wound to the right heel, rated 10 percent; and residuals of back contusion, right ear hearing loss, postoperative residuals, torsion, right testicle epididymitis and residuals, shell fragment wounds left buttock, left heel, right shoulder, right side of neck and right ear, all rated noncompensable. His combined rating is 100 percent. At his hearing before the undersigned, the Veteran argued that his service-connected PTSD alone renders him housebound and in need of aid and attendance. His attorney argues that the Veteran's PTSD is due to a traumatic brain injury received from concussions and explosions due to grenades. The Veteran stated this injury causes the need for aid and attendance and renders him housebound. He also contends that his service-connected right ankle disability led to a right leg amputation because it made him fall and he eventually required amputation of the leg. He asserts that this leg disability, in combination with his other disabilities, results in his housebound status and need for aid and attendance. The Veteran has submitted medical opinion evidence from G.M.A., M.D., in support of his claims. Dr. A. stated in October 2014, "Having reviewed all relevant records, interviewed and examined [the Veteran] in regard to his PTSD secondary to his traumatic brain injury it is my professional opinion, within reasonable bounds of medical probability, that he deserves a 100% rating for PTSD especially in regard to his homebound condition." The Board has reviewed this opinion but emphasizes that the Veteran is in fact already rated 100 percent for PTSD and that service connection is not in effect for traumatic brain injury. Dr. A. also stated that the amputation of the Veteran's right leg was, "definitely service connected" by a chain of events related to the service-connected right ankle disability, and this right leg amputation contributes to his homebound condition and exacerbates his PTSD. Dr. A. also urges that decreased auditory acuity, tinnitus, right inguinal hernia, reflux, vision problems and vestibular disorder due to treatment for infection contracted during treatment for a service-connected disability are related to service, are severe and contribute to his homebound status The Veteran testified and the record reflects that he filed a notice of disagreement with an April 2013 rating decision which denied specially adapted housing, increased ratings for hernia/stomach disability and right ear hearing loss, service connection for right leg amputation, hearing loss left ear, removal of colon polyp, vestibular disorder and vision disorder. Thus, the issues referenced as contributing to the need for aid and attendance are currently being adjudicated by the RO based on the Veteran's timely NOD. The Board finds that these claims (exclusive of the adapted housing claims) are inextricably intertwined with the claim for SMC based on the need for aid and attendance or being housebound. The granting of service connection and the assigning of disability ratings for these issues which the Veteran has disagreed would potentially affect the issue of whether the Veteran is in need of aid and attendance or was housebound due to his service-connected disabilities. The RO must next prepare a statement of the case and/or issue rating decisions as appropriate. The Board also notes that it appears that there are relevant examination requests pending for the disabilities at issue dated in August 2014, and that an eye examination was conducted in September 2014. The appropriate remedy where a pending claim is inextricably intertwined with another claim is to remand the other claim pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board also notes that the issue of service connection for traumatic brain injury, to include as secondary to PTSD, being referred to the AOJ is intertwined with the issue of aid and attendance or housebound status as well in light of the Veteran's argument at his hearing. Given the above discussion and the Veteran's contentions, an examination should be obtained addressing whether the Veteran's service-connected disabilities alone cause him to be in need of air and attendance or render him housebound. See 38 C.F.R. § 3.159(c)(4). All appropriate disabilities should be considered. The Veteran is cautioned, however, that failure to report for any scheduled examination without explanation may result in the denial of his claim. 38 C.F.R. § 3.655 (2014). Accordingly, the case is REMANDED for the following action: 1. Conduct adequate development and adjudicate the service connection and increased rating claims referenced above, including the claim for service connection for traumatic brain injury, to include as secondary to PTSD, the claims for increased ratings for hernia/stomach disability and right ear hearing loss, and service connection for right leg amputation, hearing loss left ear, removal of colon polyp, vestibular disorder and vision disorder. 2. Schedule the Veteran for an examination to determine if he has a need for regular aid and attendance or is housebound due to his service-connected disabilities. The VVA/VBMS records should be made available to the examiner for review before the examination. All appropriate testing should be conducted, and all pertinent disabilities should be diagnosed. The examiner should determine the nature, extent, severity, and manifestations of all of the Veteran's current service-connected disabilities. The examiner should render an opinion as to whether the Veteran's service-connected disabilities alone, and only those service-connected disabilities, at least as likely as not (a probability of 50 percent or greater) (1) result in physical or mental impairment that leave him substantially confined to his dwelling and immediate premises (with reasonable certainty that such disability or disabilities and resultant confinement will continue throughout his lifetime), or (2) render him so helpless as to require the regular aid and attendance of another person. The examiner is requested to consider each existing condition and its impact on the Veteran's ability to perform acts of daily living; including keeping himself clean and presentable; feeding, dressing and undressing himself; attending to the needs of nature; and incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. A rationale for all opinions expressed should be provided. 3. After undertaking any other development deemed essential in addition to that specified above to include VA examination, readjudicate the Veteran's claim(s) on appeal. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).