Citation Nr: 1804610 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 17-32 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A). ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1969 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). [The Veteran had also initiated an appeal of a denial of entitlement to SMC based on housebound status, but expressly limited his appeal to the matter of entitlement to SMC based on the need for regular aid and attendance in his May 2017 substantive appeal.] In the May 2017 substantive appeal, the Veteran's spouse, who is his VA-appointed fiduciary, asserted he has congestive heart failure, pulmonary hypertension, and lung disease due to his service in Vietnam and exposure to herbicide agents/Agent Orange, therein. It is not clear whether the Veteran seeks service connection for such disabilities; the matter is referred to the Agency of Original Jurisdiction (AOJ) for clarification and any appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action on his part is required. REMAND The Board finds that further development of the record remains necessary for proper adjudication of the instant claim. VA treatment records and medical treatment providers' opinions show the Veteran requires regular aid and attendance with activities of daily living due to his medical disabilities, but present conflicting evidence as to whether such impairment is due to his service-connected disabilities. The Veteran has established service connection for PTSD, rated 70 percent; nephropathy, rated 30 percent; diabetes mellitus, rated 20 percent; peripheral neuropathy of both lower extremities, rated 20 percent, each; bilateral diabetic retinopathy with diabetic macular edema of the right eye, rated 10 percent; and pseudofolliculitis barbae, rated 0 percent. In a July 2016 report of examination for housebound status or permanent need for regular aid and attendance, a VA treating physician reported diabetes mellitus, hypertension, pulmonary hypertension, obstructive sleep apnea, diabetic neuropathy, edema, hepatitis C, back pain, hip pain, and chronic kidney disease, among other disabilities had been diagnosed. She opined shortness of breath, edema, back pain, and hip pain restricted his daily activities and ability to function. In a February 2017 letter, a private treating psychologist noted the Veteran still has the mental capacity to handle his financial affairs. On evaluation on the day the letter was written, he was alert and oriented. He knew the extent of his medical and psychiatric problems and was able to give a detailed history of his medical issues. The physician noted he had been taking his medication, attending his appointments, and been taking care of his health to the best of his ability. The physician noted his spouse reported in a telephone call that the Veteran had been taking care of his own financial affairs and paying his own bills. In a May 2017 letter, a treating VA physician reported the Veteran was significantly disabled and unable to tend to activities of daily living except feeding himself due to diastolic heart failure with respiratory failure, which is not service-connected. He became severely short of breath with ambulation and had to take frequent breaks. He was unable to dress, bathe, use the toilet, or transfer himself without assistance. He was unable to climb stairs without becoming severely short of breath. A May 2017 VA treatment record notes the Veteran reported his visual acuity was declining; he had difficulty seeing print. Another treatment record notes he required help or supervision with bathing, dressing, transferring, and moving around indoors within the prior seven days. He had difficulty preparing meals, tending to housework, shopping, getting from one place to another, managing medication, and managing finances. He was noted to have become so agitated or disoriented in the past 90 days that his safety was endangered. [The May 2017 VA treatment provider's opinion and VA treatment records were received at the AOJ after a statement of the case (SOC) was issued in March 2017, but before the appeal was certified to the Board in September 2017. The AOJ will have opportunity to consider this evidence in the first instance on remand. 38 C.F.R. § 19.31(b)(1).] In a September 2017 letter (received in November 2017), a private treating physician reported the Veteran had significant disability from his severe diabetes. Retinopathy and neuropathy associated with diabetes caused "significant" impairment in his vision and balance and led to severe difficulty with basic activities of daily living, including dressing, bathing, transferring, and preparing food. In a November 2017 statement, the Veteran's spouse reported he could no longer o be left alone or tend to many daily tasks by himself. In another November 2017 statement, she reported that his service-connected diabetes mellitus required in-home care. A contemporaneous examination to assess the Veteran's need for aid and attendance (and resolve the conflicting evidence) is necessary. It also appears that relevant treatment records are outstanding. On remand, records of VA treatment the Veteran has received for PTSD, nephropathy, diabetes mellitus, lower extremity peripheral neuropathy , bilateral diabetic retinopathy with diabetic macular edema of the right eye, and pseudofolliculitis barbae from July 2012 to February 2017 and from May 2017 to the present (to specifically include treatment at the Durham, North Carolina VA Medical Center (VAMC)) should be obtained. The Veteran should be asked to identify any providers of non-VA treatment he received for his service-connected disabilities, including psychiatric treatment at Vitlink Psychiatric Services (and records of any such treatment should also be secured). In addition, a VA inquiry response shows the Veteran was awarded Social Security Administration (SSA) disability benefits beginning in December 2012, and it does not appear the SSA records have been sought. On remand, the complete record upon which the determination was made should be obtained. The case is REMANDED for the following: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should obtain from SSA copies of their determination on the Veteran's claim for SSA disability benefits and the record upon which the determination was made. If such records are unavailable, the reason for their unavailability must be explained for the record. 2. The AOJ should secure for association with the record all records of VA treatment the Veteran has received for his PTSD, nephropathy, diabetes mellitus, peripheral neuropathy of the lower extremities, bilateral diabetic retinopathy with diabetic macular edema of the right eye, and pseudofolliculitis barbae from July 2012 to February 2017 and from May 2017 to the present (to specifically include records of his treatment at the Durham VAMC). If any such records are unavailable, the reason for their unavailability must be explained for the record, and the Veteran should be so advised. 3. The AOJ should advise the Veteran that the complete records of any private treatment he received for his service-connected disabilities, including psychiatric treatment at Vitlink Psychiatric Services, are pertinent evidence that is outstanding, and ask him to submit authorizations for VA to secure such records. The AOJ should secure for the record complete records of such treatment. If any private records sought are not received pursuant to AOJ's request, the Veteran should be advised that ultimately it is his responsibility to ensure that pertinent private treatment records are received. 4. The AOJ should then arrange for an aid and attendance examination of the Veteran. The Veteran's entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. The examiner should have available for review the 38 C.F.R. §§ 3.350(b), 3.352(a) criteria for determining need for aid and attendance. Any tests or studies indicated should be completed. The examiner should respond to the following: The examiner should opine whether it is it at least as likely as not (a 50% or better probability) that the Veteran requires regular aid and attendance from another individual due to his service-connected disabilities alone. The criteria in the applicable regulations should be addressed, including a determination regarding whether the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; is unable to dress or undress himself, or to keep himself ordinarily clean and presentable; needs frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disabilities cannot be done without aid; is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; is unable to attend to the wants of nature; or has incapacity, physical or mental, which requires care or assistance on a regular basis for protection from hazards or dangers from the daily environment. Please explain the rationale for all opinions in detail, citing to supporting factual data as deemed appropriate. 5. The AOJ should then review the entire record and readjudicate the claim. If the benefit sought remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran opportunity to respond, and return the case to the Board. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).