Citation Nr: A20007362 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190826-27455 DATE: April 30, 2020 REMANDED Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from July 1982 to July 1985 and from December 1985 to August 1990. This appeal stems from a June 2019 rating decision issued under the provisions of the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with the Department of Veterans Affairs' (VA) decision on their claim to seek review. The Veteran chose Direct Review by a Veterans Law Judge. This Board decision is consistent with the new AMA framework. 1. Entitlement to SMC based on aid and attendance/housebound status. The Veteran contends that his service-connected disabilities (sinusitis with sinus headaches; status post pyeloplasty and vagotomy with keloid formation, dyspepsia, GERD and mild anemia secondary to bleeding ulcer; tinnitus; allergic rhinitis; keloid formation; and bilateral hearing loss) render him in the need of the aid and attendance of another person. VA had a duty to assist the Veteran in the development of his SMC claim prior to the June 2019 rating decision on appeal. Although the Veteran submitted a VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, dated in November 2018, this examination addressed both service-connected and nonservice-connected disabilities. The claims folder does not contain a VA examination addressing whether the Veteran’s service-connected disabilities alone meet the criteria necessary to establish entitlement to SMC, as detailed in 38 U.S.C. § 1114 (l) (2012) and 38 C.F.R. §§ 3.350, 3.52 (a) (2019). Based on this information, the Board finds that a VA aid and attendance examination should have been conducted to assess the current severity of his service-connected disabilities. As such, the Board must remand this matter for a VA aid and attendance examination to be conducted. Additionally, it does not appear the Veteran was provided with notification of the information necessary to prove his claim (VCAA notice) prior to the rating decision on appeal. On remand, VCAA notice regarding his SMC claim must be provided to the Veteran. The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice (VCAA) regarding his claim for SMC Aid and Attendance/housebound status. 2. After the above has been completed to the extent possible, schedule the Veteran for an appropriate VA examination to determine his need for SMC based on the need for regular aid and attendance or on being housebound due to his service-connected disabilities (sinusitis with sinus headaches; status post pyeloplasty and vagotomy with keloid formation, dyspepsia, GERD and mild anemia secondary to bleeding ulcer; tinnitus; allergic rhinitis; keloid formation; and bilateral hearing loss). The claims file must be made available to and reviewed by the examiner. If the Veteran is unavailable to attend the VA examination, the examiner is directed to render an opinion based on a review of the evidence of record. The purpose of the examination is to determine whether the Veteran is in need of regular aid and attendance or housebound benefits due to his service-connected disabilities. The examiner must specifically address these questions regarding the Veteran’s service-connected disabilities only: (a.) Is the Veteran unable to dress or undress himself and keep himself ordinarily clean and presentable? (b.) Does he require frequent adjustment of any special prosthetic or orthopedic appliances that cannot be done without aid? (c.) Is he unable to feed himself through loss of coordination of upper extremities or through extreme weakness, or unable to attend to the wants of nature? (d.) Does he have incapacity, physical or mental, that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment? (e.) Does he have any disability that requires that he remain in bed? (f.) Is he substantially confined to his dwelling and the immediate premises, and if so, is it reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime? If it is found that the Veteran is housebound and/or in need of aid and attendance, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected disabilities caused the need for aid and attendance and/or housebound status. If yes, then the examiner should provide an opinion on the earliest date it was ascertainable that the Veteran was in need of aid and attendance and/or housebound. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. The examiner is to address and reconcile, to the extent possible, the VA examination with the November 2018 aid and attendance examination report. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.