Citation Nr: 1817479 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 13-27 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. REPRESENTATION Appellant represented by: Amy R. Fochler, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2017, a travel board hearing was held before the undersigned. At that time, the record was held open for 90 days for the submission of additional evidence and the Veteran indicated he would waive RO jurisdiction. Evidence was subsequently submitted. In April 2017, the Veteran completed a VA Form 21-22 appointing a private attorney, as his representative. In October 2017, the attorney submitted a letter to the VA Evidence Intake Center indicating that she was withdrawing representation of the Veteran pursuant to 38 C.F.R. § 14.631 (2017). She further stated that the withdrawal did not adversely impact the Veteran and that he had been adequately advised of the withdrawal. This appeal was certified to the Board in May 2014 and thus, 38 C.F.R. § 20.608(b) (2017) is for application. This regulation provides that following certification of an appeal to the Board, a representative may not withdraw representation without good cause shown on motion and a signed statement certifying that a copy of the motion was sent via first-class mail, postage prepaid, to the Veteran, setting forth the address to which the copy was mailed. 38 C.F.R. § 20.608(b)(2). The regulation also indicates that the motion should be filed with the Office of the Principal Deputy Vice Chairman. For the attorney's withdrawal to be valid, she must comply with the above directives. While the Veteran may elect to dismiss his representative, and while the representative may still provide VA with evidence that she has complied with 38 C.F.R. § 20.608(b)(2), at this time without evidence showing regulatory compliance the attorney's withdrawal cannot be accepted. This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. The issue whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right shoulder arthritis was raised at the travel board hearing, 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) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In May 2011, VA denied entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. The Veteran disagreed with the decision and perfected this appeal. He contends that as a result of his service-connected paranoid schizophrenia and right shoulder disorder, he is so helpless as to be in need of regular aid and attendance. On review, additional development is needed. See 38 C.F.R. § 3.159(c) (2017). At the November 2017 hearing, the Veteran testified that he had an appointment to see a new private doctor about his psychiatric disorder. The Veteran should be offered an opportunity to identify any private mental health records and submit an authorization for their release. The Veteran also testified that he continues to receive VA medical treatment. Updated records should be obtained. The most recent VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance is dated in December 2010. Considering the Veteran's contentions as well as the length of time since this form was completed, a current examination is needed. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify any private providers who have treated his psychiatric and right shoulder disorders since December 2010. He should complete a VA Form 21-4142 for each provider. Thereafter, the RO must request any identified records. 2. Request medical records from the VA Medical Centers in Asheville, Durham, and Salisbury (to include the Charlotte Community Based Outpatient Clinic) for the period from July 2013 to the present. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO 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 claims. The claimant must then be given an opportunity to respond. 3. The RO should then adjudicate the claim of entitlement to service connection for right shoulder arthritis. The Veteran is advised that the Board will not exercise appellate jurisdiction over any claim that is not timely perfected for appeal. 4. Thereafter, schedule the Veteran for a VA aid and attendance/housebound examination. The VBMS and Virtual VA folders must be available for review. The examiner is requested to indicate whether the Veteran, as a result of service-connected disabilities alone, is permanently bedridden or so helpless as to be in need of regular aid and attendance. In making this determination, the examiner is requested to discuss the Veteran's ability for self-care. The examiner should also indicate whether, as a result of service-connected disabilities alone, the Veteran is substantially confined to his dwelling and immediate premises. The examiner is advised that service connection is in effect for paranoid schizophrenia, right shoulder dislocations, right shoulder scarring, and for scars at the right and left antecubital fossae. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. The Veteran is to be notified that it is his responsibility to report for the examination 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 (2017). 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 was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, implement corrective procedures at once. 6. Upon completion of the requested development and any additional development deemed appropriate, readjudicate the issue of entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity for response. 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN 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).