Citation Nr: 21003623 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 05-11 335 DATE: January 22, 2021 REMANDED The issue of a higher rate of special monthly compensation (SMC) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from October 1962 to January 1983. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2008 rating decision. In a January 2012 decision, the Board remanded the issue of a higher rate of SMC, specifically at the “s” rate, for consideration by the agency of original jurisdiction (AOJ). In a November 2014 decision, the Board again remanded the Veteran’s claim indicating that the AOJ had not readjudicated the Veteran’s claim. In April 2015, the AOJ issued a supplemental statement of the case (SSOC) denying a higher rate of SMC. In a November 2015 decision, the Board determined that there was no indication that the AOJ had considered the issue of a higher rate of SMC at the “s” rate in the first instance and again remanded the matter for AOJ consideration. In an April 2016 SSOC, the AOJ determined that the Veteran did not meet the criteria for a higher rate of SMC at the “s” rate. In an August 2018 decision, the Board found that although in the April 2016 SSOC the AOJ determined that the Veteran did not meet the criteria for a higher rate of SMC at the “s” rate, the AOJ’s rationale was pertinent only as to why the Veteran is not entitled to SMC at the “l” rate prior to August 7, 2010. Moreover, the Board noted that the Veteran had been assigned earlier effective dates for the grant of service connection for peripheral neuropathy of the left lower extremity, left upper extremity hemiparesis, and facial asymmetry. The Board found that the AOJ should clarify whether the Veteran is entitled to SMC at a higher rate, to include the “s” rate, in the context of his currently assigned rates of SMC. Lastly, the Board found that the Veteran should be afforded a VA examination to determine whether he is now housebound as a result of his service-connected disabilities. Although the Board regrets the delay in yet another remand, further development is necessary regarding the Veteran’s claim of entitlement to a higher rate of SMC. It appears that the Veteran has been receiving SMC at a rate higher than at the “s” rate since August 7, 2010. Thus, to the extent that earlier remands indicated that the issue on remand was entitlement to SMC at the “s” rate subsequent to August 7, 2010, that appears to be an error. Nonetheless, the Veteran is appeal a higher rate of SMC. In an August 2020 SSOC, the AOJ denied the Veteran’s claim for a higher rate of SMC. The AOJ also noted that the request to schedule a VA examination, pursuant to the August 2018 Board remand directives, was canceled due to the inability to contact the Veteran. The Board has reviewed the evidence of record and finds that in May 2019 the Veteran submitted correspondence regarding an unintelligible call where only the word evaluation could be understood. The Veteran asked what the purpose of the call was and requested follow up. Further, in December 2020 the Veteran’s representative submitted an appellate brief again stating that in May 2019 correspondence the Veteran reported an unintelligible phone call. The Veteran’s representative requested that the Veteran be afforded a VA examination regarding the issue of entitlement to a higher rate of SMC. Presently, the Board finds that the Veteran has provided good cause regarding the previous inability to schedule a new VA examination and that pursuant to the request in the December 2020 appellate brief, the Veteran should be afforded a VA examination in compliance with the August 2018 Board remand directives. The matters are REMANDED for the following action: 1. Scheduled the Veteran for a VA examination to determine if he is entitled to a higher rate of SMC at any time during the course of this appeal. The claims folder must be made available to and be reviewed by the examiner. All appropriate tests and studies must be accomplished, and all clinical findings must be reported in detail. The criteria in the applicable regulations should be used. For the period prior to August 7, 2010, the examiner should indicate 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; ability to dress or undress himself, or to keep himself ordinarily clean and presentable; in frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; unable to feed himself through loss of coordination of upper extremities or through extreme weakness; or unable to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis for protection from hazards or dangers to daily environment. The examiner must also address whether it is at least as likely as not (50 percent or greater probability) that the Veteran is permanently housebound by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his dwelling and the immediate premises on account of disability. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should 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). 2. Thereafter, readjudicate the claim on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case. The AOJ should clarify the Veteran’s entitlement to SMC, at all potential pertinent rates to include the “s” rate from November 13, 1998. The AOJ’s rationale should include a discussion of the rates of SMC already assigned. The Veteran should be given an opportunity to respond to the SSOC before the case is returned to the Board. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.