Citation Nr: 1632513 Decision Date: 08/16/16 Archive Date: 08/24/16 DOCKET NO. 10-47 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to special monthly compensation (SMC) due to the need for regular aid and attendance or being housebound as a result of service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1987 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) from March 2009 and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, wherein the RO denied entitlement to SMC based on the need for regular aid and attendance, and at the housebound rate, respectively. Three issues have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ), to include: (1) Entitlement to an increased disability rating for fibromyalgia (characterized as multiple symptom complex manifested by fatigue, generalized muscle pains, sleep problems, forgetfulness, and chronic diarrhea); (2) entitlement to an increased disability rating for chronic recurrent skin condition due to undiagnosed illness; and (3) entitlement to an increased disability rating for lower back disability (characterized as dextroscoliosis L3, mild narrowing at L4-L5 disc space, and small osteophytes L1-L3). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking SMC due to the need for regular aid and attendance or being housebound as a result of service-connected disabilities. Although the Board sincerely regrets the additional delay this may cause, further development is needed at this time. As noted above, the Veteran has raised claims for increased ratings for several of his service connected disabilities. The issues of entitlement to increased disability ratings for service connected disabilities of fibromyalgia (characterized as multiple symptom complex manifested by fatigue generalized muscle pains, sleep problems, forgetfulness and chronic diarrhea as the result of undiagnosed illness) and chronic recurrent skin condition due to undiagnosed illness have been raised by the record (see statement from Veteran dated October 1, 2008). In addition at his hearing held in March 2013 the Veteran raised the issue of entitlement to an increased disability rating for his service connected low back disability (characterized as dextroscoliosis L3 mild narrowing at L4 L5 disc space, and small osteophytes Li L3) when he indicated that this disability had worsened since the previous September. In addition, the Board notes that during the Aid and Attendance examination conducted in May 2014 he reported that he had recently been issued a powered wheel chair by the VA. It was also noted that his back pain now necessitated the use of opiate pain medications. Although the Board referred these claims for increased ratings back to the RO in the Board's prior remand of April 2014, no action has been taken on these claims. The Aid and Attendance benefits may not be adjudicated until the ratings assigned to the disabilities that have allegedly worsened have been evaluated. Therefore, the Board will remand the SMC issue as inextricably intertwined with the pending claims for increased ratings. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). On remand, the RO should also associate ongoing pertinent VA treatment reports with the record before the Board. 38 C.F.R. § 3.159(c)(2) (2015). The Board has noted that the Veteran's treatment records were obtained in April 2014, however, two additional years of records have accumulated since that time but have not been obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record all VA treatment records for the Veteran dated April 2014 to the present. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Adjudicate the claims for increased ratings for the service-connected disabilities. 3. If there is evidence that any of the service connected disabilities has increased in severity since the most recent Aid and Attendance examination in May 2014, schedule the Veteran for a VA aid and attendance/housebound examination. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. The examiner is advised that the Veteran is currently service-connected for the following disabilities: (1) Posttraumatic stress disorder (PTSD) with secondary depressive disorder, evaluated as 50 percent disabling as of December 2004 and 70 percent disabling as of September 2010; (2) multiple symptom complex manifested by fatigue, generalized muscle pains, sleep problems, forgetfulness and chronic diarrhea as the result of undiagnosed illness (also referred to as fibromyalgia), evaluated as 40 disabling; (3) dextroscoliosis L3, mild narrowing at L4-L5 disc space and small osteophytes L1-L3 (also referred to as low back disability), evaluated as 20 percent disabling; (4) degenerative joint disease of the left knee, evaluated as 20 percent disabling; (5) chronic recurrent skin condition due to undiagnosed illness (also referred to as psoriasis or eczema), evaluated as 10 percent disabling; and (6) internal derangement of the right shoulder, evaluated as 10 percent disabling. The examiner should evaluate the Veteran for the purpose of determining his need for regular aid and attendance or whether he is housebound. The examiner should elicit from the Veteran a description of his limitations caused by his service-connected disabilities and how they affect his ability to conduct his activities of daily living. The examiner should be advised that he/she need not consider whether the Veteran has anatomical loss of any part of the upper or lower extremities, blindness, or deafness as the medical evidence of record fails to establish the presence of any of these conditions. If necessary to answer the following questions, the examiner should order any additional examinations specific to any of the Veteran's service-connected disabilities. The examiner is also instructed to explicitly answer following specific questions in determining whether the Veteran is in need of basic aid and attendance: a) Is the Veteran permanently bedridden due to service-connected disabilities? ("Bedridden" will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.) b) Is the Veteran so helpless as to be in need of regular aid and attendance of another person, which includes, but is not limited to: 1. Inability to dress or undress himself; 2. Inability to keep himself ordinarily clean and presentable; 3. Frequent need of adjustment of any special prosthetic or orthopedic appliances 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 unable to adjust without aid, such as supports, belts, lacing at the back, etc. However, consideration should be given to the Veteran's report that he is unable to put on braces on his lower extremities (even if for a nonservice-connected disability) due to his service-connected low back disability); 4. Inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; 5. Inability to attend to the wants of nature; 6. Incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment. Specifically, the examiner should address whether there is a factual need for regular aid and attendance due to the Veteran's service-connected disabilities. The examiner should be instructed that he/she is only to consider service-connected disabilities in considering the Veteran's need for regular aid and attendance. Nonservice-connected disabilities cannot be the basis for the need for aid and attendance. Thus, it is important for the examiner to identify and separate the Veteran's symptoms among his various service-connected and nonservice-connected disabilities and only consider those symptoms related to service-connected disabilities and the affects they have on his functioning in determining whether he has a factual need for aid and attendance. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 3. Readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an appropriate period for response. Thereafter, return the appeal to the Board as warranted. The Veteran 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 MARTIN 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).