Citation Nr: 18150340 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-47 154 DATE: November 15, 2018 REMANDED Entitlement to special monthly compensation (SMC) for aid and attendance based on 38 U.S.C. § 1114(l) is remanded. Entitlement to special monthly compensation (SMC) based on statutory housebound status, 38 U.S.C. § 1114(s) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1971 to June 1976. He served in Vietnam and was awarded the Combat Infantryman Badge. 1. Entitlement to special monthly compensation (SMC) for aid and attendance based on 38 U.S.C. § 1114(l) is remanded. The Veteran asserts in his Substantive Appeal that he needs aid and attendance as he has been “in and out of the hospital three times…[and] my family help me with food, clothing, bills as well as my monthly settlement.” The Board notes that an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance was completed in December 2015. At that time, the examiner noted that the Veteran was ambulatory, able to clothe, bathe, and feed himself, but noted that he needed assistance with managing his medications and his financial affairs. Since then, the Veteran asserts that he now needs help with food and dressing himself. Significantly, the Board observes that the Veteran has been found incompetent to handle his VA disbursement of funds in a September 2016 rating decision. The Board notes that the Veteran is service-connected for post-traumatic stress disorder (PTSD), rated as 100 percent disabling, for a hernia, rated as 20 percent disabling, for Diabetes Mellitus, type II, rated as 20 percent disabling, and a noncompensable rating for a scar due to his hernia. To warrant special monthly compensation at the aid and attendance rate, the evidence must show that the Veteran, due to his service-connected disabilities, has the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The Board requires a current examination to determine whether the Veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance. 2. Entitlement to special monthly compensation (SMC) based on statutory housebound status, 38 U.S.C. § 1114(s) is remanded. In a January 2013 rating decision, the Veteran’s PTSD rating was increased from 70 percent disabling to 100 percent disabling. In that same rating decision, VA granted entitlement to special monthly compensation by reason of being housebound, effective September 13, 2011. In the narrative portion, VA wrote that this compensation is payable when a veteran has a single disability rated at 100 percent and additional disabilities independently ratable at 60 percent or more. The Veteran filed a Notice of Disagreement disagreeing with the “decision on A&A/Housebound. There were no considerations of all my health problems service-connected and non-service connected problems, as they pertain to my health.” He requested a de novo review with a Decision Review Officer. In July 2016, a Statement of the Case was issued denying entitlement to “special monthly compensation based on aid and attendance,” and separately denying “special monthly compensation based on household.” Under Reasons and Bases, the reviewer relied on the December 2015 examination and determined that the Veteran was not in need of aid and attendance solely due to his service connected disabilities. The reviewer denied SMC housebound based on the same examination, and noted that the Veteran’s service connected disabilities did not meet the schedular requirement for a grant of household benefits. It is unclear to the Board whether the Veteran was compensated under 38 U.S.C. § 1114(s). In that same rating decision, VA determined that the Veteran’s claim for TDIU was moot as he was now in receipt of a 100 percent disability rating for his PTSD. The Veteran’s claim for entitlement to TDIU was received in June 2012, wherein the Veteran claimed that his service-connected PTSD, hernia and diabetes prevented him from securing or following a substantially gainful occupation. A Veteran may not receive a TDIU and a 100 percent rating for the same disability. However, the United States Court of Appeals for Veterans Claims (Court), has noted that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU rating independent of the other 100 percent disability rating). As noted above, aside from PTSD, the Veteran is service-connected for diabetes mellitus rated at 20 percent; hernia rated at 20 percent, and a noncompensable rating for hernia scar. Given VA’s obligation to maximize the Veteran’s benefits, VA must determine whether the Veteran meets the criteria for a TDIU based on the aggregate impact of his service-connected disabilities, without consideration of his PTSD. The AOJ should also ask the Veteran to identify any additional, pertinent medical treatment that he has received related to his service-connected conditions and entitlement to TDIU and any additional, pertinent records should be associated with the claims file. The AOJ should also ask the Veteran to submit any additional, pertinent lay statements relating to his claims. The Agency of Original Jurisdiction (AOJ) must take corrective action, to include any audits and review of the case file as necessary, to determine the proper compensation due the Veteran. The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate examination to determine his eligibility for special monthly compensation based on the need for the regular aid & attendance of another person. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran and/or his caregiver(s)) should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran’s physical examination, and statements made by the Veteran and/or his caregiver(s) regarding his need for the regular aid & attendance of another person, the examiner should state whether solely as a result of service-connected disabilities, the Veteran is bedridden (or actually required to remain in bed), unable to dress or undress himself, unable to keep himself ordinarily clean and presentable, unable to feed himself or attend to the wants of nature, or experiences incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The examiner also should state whether the Veteran needs a higher level of care or a need for personal health-care services provided on a daily basis in his home by a licensed health care professional or someone under the supervision of a licensed health care professional. A complete rationale must be provided for any opinions expressed. 2. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his claim for entitlement to TDIU that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, such as friends and/or family members, who were contemporaneously informed of the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence 4. After completing a thorough audit and review, the AOJ should readjudicate the claim for special monthly compensation based on housebound status in light of all the evidence of record, to include the determination of TDIU. 5. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel