Citation Nr: 21070877 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-14 965 DATE: November 26, 2021 REMANDED Entitlement to an initial rating greater than 20 percent for cervical arthritis is remanded. Entitlement to an initial rating greater than 20 percent for lumbar arthritis is remanded. Entitlement to an initial rating greater than 20 percent for hepatitis C is remanded. Entitlement to an initial rating greater than 10 percent prior to August 22, 2014, and a rating greater than 20 percent thereafter, for type II diabetes mellitus (DM) is remanded. Entitlement to an initial compensable rating for a left neck scar is remanded. Entitlement to special monthly compensation (SMC), to include based on the need for regular aid and attendance or on account of being housebound, is remanded. REASONS FOR REMAND The Veteran had active service from August 1964 to June 1968. He appealed a January 2015 rating decision by the Agency of Original Jurisdiction (AOJ), which granted service connection for the disabilities on appeal. Since the issuance of the January 2018 Statement of the Case, new VA treatment records have been added to the claims file. See January 2019 CAPRI records. Generally, the Board may not consider additional evidence previously unreviewed by the AOJ; however, the Board is remanding the appeal for further development so a waiver by the Veteran is unnecessary. See 38 C.F.R. § 20.1305(c). In July 2021, the Veteran's representative filed motion to withdraw from representing the Veteran. As the motion complied with 38 C.F.R. § 20.6, the motion was granted. See October 2021 Board letter. Thus, the Veteran is currently unrepresented. The Board notes that the Veteran did not appear for his September 2021 Board hearing. Accordingly, he was marked as a "no-show" and his hearing request is considered withdrawn. 38 C.F.R. § 20.704 (d). 1. Increased Ratings The Veteran appealed the disability ratings assigned in the January 2015 rating decision. During the pendency of the appeal, the AOJ determined that new examinations were warranted for the relevant conditions. See October 3, 2017 Exam Request. A December 2017 Compensation & Pension printout stated that the Veteran failed to report for the examinations. Although a copy of the notice letter informing the Veteran of the date, time and location of his examinations is not contained in the record, the absence of copies of the examination scheduling letters in the claims file does not preclude application of the presumption that the Veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). However, a July 2017 VA Form 21-0820 shows that the Veteran reported being homeless and not having a mailing address at that time. Despite being notified that the Veteran was homeless, the AOJ continued to send mail to the Veteran's old address, which was returned as undeliverable. See October 12, 2017 returned mail (Notice of Disagreement acknowledgment), December 1, 2017 returned mail (Statement of the Case), and February 2018 returned mail (Statement of the Case). Given that the AOJ continued to send mail to an outdated address during the period the Veteran was scheduled for examinations, it is reasonable to infer that the Veteran did not receive proper notice of his scheduled examinations. Accordingly, remand is appropriate to afford the Veteran contemporaneous examinations for his claimed disabilities. Further, as it appears the Veteran did not receive a copy of the January 2018 Statement of the Case, the AOJ should mail the Veteran a copy prior to completing the remaining remand directives. Additionally, there appear to be outstanding private treatment records. VA medical records dated in October 2017, January 2018, and October 2018 note the Veteran received non-VA care for his back, to include from S.M.G. and R.W.R.H., following a series of accidents. As these records are relevant to the Veteran's low back claim, the AOJ should attempt to obtain them. 2. SMC According to a November 2018 VA social work note, the Veteran reported having multiple medical complications that limited his ability to ambulate and provide selfcare. He stated he was unable to move to bathe or cook a meal, and that he needed help. A claim for SMC, to include based on the need for aid and attendance, is inferred as part of his increased ratings claims. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); AB v. Brown, 6 Vet. App. 35, 38 (1993). SMC based on the need for aid and attendance is payable when, because of service-connected disability, a veteran has suffered anatomical loss or loss of use of both feet, of one hand and one foot, is blind in both eyes, is permanently bedridden, or requires the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, attend to the wants of nature, or protect oneself against the hazards or dangers incident to a claimant's daily environment. 38 C.F.R. § 3.352 (a); see also Prejean v. West, 13 Vet. App. 444, 447-48 (2000). The AOJ should provide the Veteran with notice of the requirements for establishing entitlement to SMC, and conduct any necessary development, including obtaining an examination to address whether the Veteran's service-connected disabilities prevent him from dressing, keeping ordinarily clean and presentable, feeding himself, attending to the wants of nature, and/or protecting himself against hazards or dangers incident to daily life. The matters are REMANDED for the following actions: 1. After verifying the Veteran's current address, mail the Veteran a copy of the January 2018 Statement of the Case. 2. Thereafter, provide the Veteran with notice explaining how to substantiate a claim for SMC, to include based on the need for aid and attendance, and conduct any other necessary development. 3. Obtain any updated relevant VA and/or private treatment records that have not already been received, to include from S.M.G. and R.W.R.H., and associate the same with the claims file. 4. After any outstanding records have been received, schedule the Veteran for an examination to determine the current severity of his service-connected cervical and lumbar spine disabilities. After a review of the claims file and examination of the Veteran, the examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing, and elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After any outstanding records have been obtained, schedule the Veteran for an examination to assess the nature and severity of his DM. After a review of the claims file and examination of the Veteran, the examiner should provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his DM. The examiner must address whether the Veteran's DM is productive of regulation of activities. The examiner is advised that "regulation of activities" is defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. Medical evidence is required to show that occupational and recreational activities have been restricted due to DM. The examiner must specifically address whether, and if so when, the Veteran's DM was manifested by episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year. The examiner should also address whether the Veteran's DM requires twice a month visits to a diabetic care provider. All complications due to DM must be carefully explained and evaluated. A complete rationale must be provided for any opinion offered. 6. After any outstanding records have been obtained, schedule the Veteran for an examination to assess the current severity of his hepatitis C. All indicated studies must be performed. All pertinent medical records should be made available to the VA examiner for review. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be accomplished. Based on the examination and review of the record, the examiner should provide a full description of all current manifestations of the Veteran's hepatitis C and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 7. After any outstanding records have been obtained schedule the Veteran for an examination to determine the current severity of his service-connected left neck scar. After a review of the claims file and examination of the Veteran, the examiner should provide a full description of the scar and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 8. Thereafter, schedule the Veteran for a VA aid and attendance examination to ascertain whether his service-connected disabilities cause him to be housebound or in need of regular aid and attendance of another person. The claims file must be reviewed, and the review noted in the report. The examiner should indicate the underlying disability or disabilities causing each specific impairment of function noted. The examiner should also state an opinion as to whether any of these functional impairments, alone or in combination, render the Veteran housebound or in need or regular aid and attendance of another person, to include whether his service-connected disabilities render him unable to protect himself from the hazards or dangers incident to his daily environment. A complete rationale for the opinion should be provided. 9. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.