Citation Nr: 21068870 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 15-28 880 DATE: November 15, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1996 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of background, the Board previously denied the Veteran's claim in a September 2020 decision. The Veteran appealed the Board's September 2020 decision to the United States Court of Appeals for Veterans Claims (Court). A June 2021 June Court order vacated and remanded the issue on appeal pursuant to a June 2021 Joint Motion for Partial Remand (JMPR). Specifically, the parties agreed that the Board failed to grant the Veteran's request for 90 days to submit additional evidence and argument following the mailing of the notice of the certification of the appeal to the Board for appellate review. As such, the issue on appeal has been returned to the Board for readjudication. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001). The Board last remanded the issue on appeal in August 2018 following a March 2018 Court order implementing a February 2018 JMPR. Specifically, the parties agreed that the Veteran provided lay statements from his wife that reasonably raised the issue of entitlement to SMC based on the need for aid and attendance. The parties agreed the Board failed to consider and discuss entitlement to an award of SMC at the (l) rate. As such, in August 2018, the Board remanded the issue on appeal in order to afford the Veteran with a VA examination addressing whether he requires aid and attendance due to his service-connected disabilities. A review of the record shows the Veteran was afforded a VA examination in July 2020. However, as discussed below, the Board finds that remand necessary for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the Veteran was notified the issue on appeal was returned to the Board in July 2021. See July 2021 appeal notification letter. The Veteran was notified that he must submit additional argument or evidence within 90 days of the date of the appeal notification letter. Id. In August 2021, the Veteran's representative submitted additional arguments in support of the Veteran's claim. See August 2021 appellate brief. Additionally, the 90 days to submit additional evidence and argument has expired. Therefore, the Board may proceed with adjudicating the Veteran's claim. Entitlement to SMC based on the need for aid and attendance is remanded. The Veteran, through his representative, contends he is entitled to SMC based on the need for aid and attendance. Specifically, the Veteran contends that he requires regular supervision due to his service-connected seizures associated with his PTSD because when he experiences a seizure, he is unable to protect himself from hazards or dangers incident to his daily environment. See August 2021 appellate brief. As noted, the Veteran was afforded a VA examination for housebound or permanent need for regular aid and attendance in July 2020. When VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In this case, the July 2020 VA examiner noted the Veteran's epilepsy restricts operating machinery and driving and his ankle condition limits duration of standing and ambulating. See July 2020 VA examination. The VA examiner noted the Veteran was able to feed himself; prepare his own meals; did not need assistance in bathing and tending to other hygiene needs; did not require nursing home care; did not require medication management; and has the mental capacity to manage his benefit payment or direct someone to do so. Id. The VA examiner noted the Veteran's posture and appearance was well developed; he was well nourished and groomed; and conversation was appropriate during examination. Id. There were no restrictions noted except during seizure activity which limits ability to operate machinery and driving. Id. The VA examiner noted the Veteran's epileptic seizure occurrence incapacitates the Veteran during episodes; occurrence of seizure is at least once per day, lasting approximately 2 to 60 minutes; and treated with medication. Id. The VA examiner further noted the Veteran was not limited with regard to leaving the home or immediate premises; however, he must be attended by his wife or son in case of seizure occurrence. Id. The Board notes the Veteran was last afforded a VA seizures examination in December 2011, more than 10 years ago. The VA December 2011 VA examiner noted the Veteran's signs and symptoms included episodes of sudden loss of postural control, complete or partial loss of use of one or more extremities, random motor movements, perceptual illusions, speech disturbances, disturbances of gait, tremors, and residuals of injury during seizures, including falls. See December 2011 VA examination. The VA examiner noted the Veteran experienced an average of 0-4 minor psychomotor seizures per week. Id. Since the December 2011 VA examination, the Veteran has reported that he experiences seizures more frequently, sometimes more than once a day. See July 2012 buddy statement; July 2012 PTSD VA examination. The Board notes the Veteran provided lay statements from him wife, son, and coworker in support of his claim. The Veteran's wife stated the Veteran becomes a liability as he may seriously hurt himself in a fall due to his seizures; day to day life is difficult; she cooks, shops, and reminds the Veteran of what he needs to do, including taking his medication; and is there to help the Veteran through his attacks. See June 2011 statement in support of claim. The Veteran's son stated he had to prevent the Veteran from drowning in a pool due to an unexpected seizure and had to take care of him whenever he falls into an attack. See July 2012 buddy statement. The Veteran's coworker witnessed the Veteran experience a severe seizure while on the job, including finding the Veteran slumped over a pallet, and that the Veteran was unable to stand or continue working following his seizures. See February 2011 statement in support of claim. The Veteran stated that his seizures happen four to five times a week and that he falls if standing during a seizure. See July 2011 statement in support of claim. The Veteran's representative noted the Veteran's statements indicate he is unable to complete household chores or work due to the unpredictable nature of his condition and that his wife essentially needs to take care of all aspects of the Veteran's life. See June 2018 correspondence. For example, the Veteran's wife stated that another person needs to be around in case of the Veteran's seizures; she sometimes helps the Veteran with dressing, bathing, and grooming; always helps the Veteran prepare meals; and needs to watch the Veteran when he tries to do house or yard work due to seizures. See November 2011 SSA function report. It remains unclear whether the Veteran's service-connected disabilities, especially the Veteran's service-connected seizures associated with his PTSD, requires regular aid and attendance of another person to protect him from the hazards of his daily environment. The July 2020 VA examiner does not address any of the lay statements provided by the Veteran, his family, or coworkers. Additionally, the VA examiner did not address whether the Veteran requires aid and attendance due to his service-connected PTSD. For example, the July 2020 VA examiner noted the Veteran does not require medication management. However, July 2013 and July 2012 PTSD examiners noted the Veteran's symptoms of his service-connected PTSD results in mild memory loss, such as forgetting names, directions or recent events. See July 2013 and July 2012 VA examinations. Additionally, a January 2012 SSA psychiatric review technique report noted that the Veteran had "moderate" difficulty in activities of daily living. As such, the Board finds that a remand is necessary to obtain an addendum medical opinion regarding whether the Veteran requires regular aid and attendance of another person due to all of his service-connected disabilities. The matters are REMANDED for the following action: 1. Forward the claims file and a copy of this REMAND to the examiner who conducted the July 2020 VA examination, or, if that examiner is unavailable, to another suitably qualified VA examiner, for completion of an addendum opinion. If the examiner determines that a new examination(s), to include a VA seizures examination, is/are necessary to provide the requested opinion, such examination(s) should be scheduled. The examiner should provide a clear opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran is in need of regular aid and attendance as a result of functional impairment associated with his service-connected disabilities, including PTSD, pseudoseizures associated with his PTSD, obstructive sleep apnea, and right ankle disability. (Continued on the next page) In particular, the examiner should render specific findings as to whether the Veteran's pseudoseizures require care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The examiner should consider and address the lay statements from the Veteran's coworker, children, and spouse indicating the Veteran must have regular supervision due to his service-connected pseudoservices. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.