Citation Nr: 21064087 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 12-19 376 DATE: October 19, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or at the housebound rate is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1988 to January 2010. The Veteran and his spouse testified at a hearing before the undersigned in April 2018. A transcript of that hearing has been associated with the record. In a June 2018 decision, the Board of Veterans' Appeals (Board) granted an increased, 20 percent (but no higher) rating for the back disability and remanded entitlement to service connection for a right foot disability, entitlement to a compensable rating for a left foot injury, and entitlement to a rating in excess of 10 percent for a traumatic brain injury (TBI) residual. The Veteran appealed the June 2018 Board denial of entitlement to a rating in excess of 20 percent for the low back disability to the United States Court of Appeals for Veterans Claims (Court). In a March 2019 order, which incorporated the parties' Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the June 2018 Board's grant of an increased rating for the low back disability as well as found that the Veteran's personal hearing testimony raised an SMC claim that the Board failed to adjudicate. In July 2019, the Board remanded the issues of entitlement to an initial rating in excess of 20 for the low back disability and entitlement to SMC based on the need for regular aid and attendance or at the housebound rate for additional development to address the concerns of the JMPR. A November 2020 rating decision granted an increased, 40 percent rating for the TBI residuals from May 31, 2019, to September 24, 2020, and a 10 percent rating from September 24, 2020. The decision also granted service connection for bilateral pes planus with heel spurs and a left foot injury and assigned a 30 percent rating from January 27, 2010. The separate rating for an individual left foot disability was discontinued in favor of this higher rating. Accordingly, the issue of service connection for a right foot disability is no longer on appeal and the Board recharacterized the issue on appeal as entitlement to an initial rating in excess of 30 percent for bilateral pes planus. In April 2021 the Board granted the TBI a 40 percent rating from January 27, 2010, to May 31, 2019, and from September 24, 2020, denied a rating in excess of 40 percent for TBI at all times from January 27, 2010, denied an initial rating in excess of 20 percent for the back disability, and denied an initial rating in excess of 30 percent for bilateral pes planus as well as Remanded the SMC claim. Initially, it is valuable to note that the only issue remaining on appeal is the SMC claim, the Veteran has already been found to be 100 percent disabled by VA, and the appellant has been receiving a 100 percent disability since January 2010. Lastly, while the JMPR found that the Veteran's personal hearing testimony raised a claim for SMC, the Board is unaware of any law or regulation that allows it to take jurisdiction over this question as part of a claim for an increased rating; claims for SMC, like all other claims for VA benefits, requires the Veteran to file an appropriate claim with the RO and in this appeal no such claim form is part of the record. Nonetheless, the Board cannot ignore the JMPR, notwithstanding the above. Given the JMPR and the law of the case doctrine, the Board will continue its' adjudication of this issue even though the foundation for its' jurisdiction over it is unlcear. Entitlement to SMC based on the need for regular aid and attendance or at the housebound rate is remanded As to the Veteran's claim for SMC, the Board notes that he claims he meets the criteria for SMC based on the need for regular aid and attendance or at the housebound rate because of his service-connected sleep apnea, posttraumatic stress disorder (PTSD), TBI, bilateral pes planus, headaches, back disability, neck disability, left and right leg radiculopathy, tinnitus, pericarditis, hypertension, right ankle disability, left and right knee disorders, left hip disorder, dry eye, irritable bowel syndrome, history of kidney stones, as well as neck, left ankle, post-operative neck scar, and right ankle scars. However, the Board finds that the existing record is not adequate to adjudicate the claim. The Board has reached this conclusion because, on the one-hand, the January 2020 and June 2021 VA examiners reported that the Veteran needs aids such as canes, braces, crutches, or the assistance of another person for locomotion. Similarly, the July 2021 addendum reported that his TBI and PTSD each cause him to require the assistance with instrumental activities of daily living for directions, meal prepping, grocery shopping, medication management, and finances. On the other hand, the June 2021 VA examiner and/or the July 2021 addendum reported that the Veteran leaves the house 5 days out of the week to go to work, the store, or social events and/or he is able to drive himself to work the help of a GPS. Similarly, the July 2021 addendum reported that the Veteran "... is able to report to work without assistance with driving however he regularly uses a GPS ... [and the]... Veteran [is] capable in taking medications but due to his memory issues, [V]eteran relies on his wife to help with organizing daily medications and understanding side effects." Tellingly, the Board notes that SMC benefits are not normally payable to veterans' who are working. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.102, 3.326, 3.350, 3.351, 3.352. Therefore, the Board finds that a Remand is required to obtain from the Veteran a detailed statement as to his employment history to include, but not limited to, the name of his employer, the number of hours he works a week, his job duties, and the number of years he has worked at his place of employment. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 19.9. While the appeal is in Remand status, any outstanding VA and private treatment records should also be obtained and associate with the record. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran's should submit any new pertinent evidence that the Board does not have. (Continued on the next page) This would greatly help the Board. 3. In order to comply with the JMPR, obtain from the Veteran a detailed statement as to his employment history to include, but not limited to, the name of his employer(s), the number of hours he works a week, his job duties, and the number of years he has worked at his place of employment(s). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.