Citation Nr: 1614828 Decision Date: 04/12/16 Archive Date: 04/26/16 DOCKET NO. 10-08 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased level of special monthly compensation (SMC) based on the need for a higher level of aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife, S.N. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (Court) in October 2015, which granted a Joint Motion For Partial Remand (JMR) vacating the Board's April 2014 decision, and remanding the case to the Board for compliance with the JMR and readjudication consistent with its order. The JMR did not disturb that portion of the Board's decision that dismissed the Veteran's claim of entitlement to an effective date prior to November 20, 2000, for the grant of service connection for paranoid schizophrenia. A videoconference hearing before the undersigned Veterans Law Judge was held in December 2013. A transcript of the hearing has been associated with the claims file. This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The issue of whether entitlement to an effective date earlier than November 20, 2000, for the grant of service connection for paranoid schizophrenia, including based on clear and unmistakable error (CUE) in the December 2003 rating decision, was raised on behalf of the Veteran in the March 2016 Post-Remand Brief, 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. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND The Veteran is seeking an increased level of SMC based on a higher level of aid and attendance. The Board recognizes that the Veteran's wife primarily assists him with activities of daily living. SMC is authorized in particular circumstances, in addition to compensation, for service-connected disabilities. See 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. §§ 3.350, 3.352 (2015). SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the "k" and "r" rates are paid in addition to any other SMC rates, with certain monetary limits. Paralysis of both lower extremities together with the loss of anal and bladder sphincter control will entitle a veteran to the "o" rate of SMC, through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350(e)(2). There is no evidence that the Veteran's spinal disability results in the loss of use of both extremities with loss of sphincter or bladder control. Determinations for entitlement to the "o" rate of SMC must be based upon separate and distinct disabilities. That requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. 38 C.F.R. § 3.350(e). 38 U.S.C.A. § 1114(p) provides for "intermediate" SMC rates between the different subsections based on anatomical loss or loss of use of the extremities or blindness in connection with deafness and/or loss or loss of use of a hand or foot. 38 U.S.C.A. § 1114(p); 38 C.F.R. § 3.350(f). In its April 2014 decision, the Board determined that the Veteran did not meet the requirements for a higher level of SMC under § 1114(r)(2). The October 2015 JMR concluded that the Board did not provide a discussion regarding the potential applicability of the first sentence of § 1114(p), which states "in the event the veteran's service-connected disabilities exceed the requirements for any of the rates prescribed in this section, the Secretary may allow the next higher rate or an intermediate rate." 38 U.S.C. § 1114(p); see Breniser v. v. Shinseki, 25 Vet. App. 64, 78-79 (2011) (holding the Board erred when it did not consider whether appellant was entitled to a higher level of SMC based on § 1114(p) when it was clear his condition exceeded the requirements for SMC at the (l) level, and that consideration was not limited to enumerated instances in 38 C.F.R. § 3.350(f)). Therefore, the vacatur of the Board's determination and remand were warranted to allow the Board to consider whether 38 U.S.C. § 1114(p) might be an avenue of increased SMC for the Veteran. The Veteran is currently service connected for paranoid schizophrenia, at a 100 percent disability rating, effective November 20, 2000; and impotence as secondary to the service-connected paranoid schizophrenia at a noncompensable rating, effective April 3, 2013. He is also in receipt of SMC under 38 U.S.C.A. § 1114, subsection (k) and (l). According to a March 2016 Post-Remand Brief, the Veteran stated he lost the use of his legs and feet and that his disabilities were not adequately assessed by a VA examiner to the extent that he was entitled to higher SMC authorized under 38 U.S.C.A. § 1114(p) or (o). The Board notes that the most recent VA examination in August 2009; over six years ago. Therefore, based on the March 2016 Brief, the JMR, and as a contemporaneous VA examination is needed, the Board must remand the issue in order to afford the Veteran an additional VA examination. 38 C.F.R. § 3.159(c)(4) (2015); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Finally, ongoing medical records, VA and private, should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Any outstanding pertinent VA or non-VA inpatient or outpatient treatment records should be obtained and incorporated in the claims folders. The Veteran should be requested to sign the necessary authorization for release of any pertinent private medical records to VA. If the AOJ cannot locate any such identified records, the AOJ must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any such records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Once all outstanding medical records have been obtained and associated with the claims file, schedule the Veteran for a VA aid and attendance examination of all service-connected disabilities to determine the level of regular aid and attendance required by the Veteran. The examination must be conducted by a VA physician, as required by law (see 38 U.S.C.A. § 1114(r)(2)). All indicated tests and studies should be conducted. The electronic claims file should be made available to the VA physician for review in connection with the examination, and such review should be noted in the report. It is requested that the guides for conducting aid and attendance or housebound exams be used, and that all clinical findings as to the service-connected disorders be set forth in detail. The Veteran claims loss of use of his legs and feet. The VA physician is requested to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran experiences loss of use of one or both legs and/or feet and, if so, whether such is related to his service-connected paranoid schizophrenia and/or impotence. The examiner should discuss the current severity of his service-connected disabilities. In providing the requested opinions, the VA physician should state whether the Veteran's wife is providing him with "professional health-care services" as either a professional health-care providers or under professional health-care supervision. The physician should also state whether in the absence of a "higher level of care" as defined in 38 C.F.R. § 3.352(b)(2) (2015), the Veteran would require hospitalization, nursing home care, or other residential institutional care. Furthermore, the VA physician is requested to comment on all prior VA Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance and lay statements from the Veteran and his wife. The examiner should set forth all examination findings, together with a complete explanation for the reasons for all opinions expressed. 3. The Veteran is to be notified that it is his responsibility to report for all examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent to the Veteran was returned as undeliverable. 4. Upon completion of the foregoing, review the reports to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 5. After completion of the above, the claim on appeal should be reviewed in light of any new evidence. If the claim is not granted, the Veteran and his representative should be furnished an appropriate supplemental state of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ BARBARA B. COPELAND 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) (2015).