Citation Nr: 21072511 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-54 718 DATE: December 3, 2021 REMAND Entitlement to special monthly compensation (SMC) for a need of level of care higher than aid and attendance, pursuant to 38 U.S.C. § 1114 (r)(2), is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to April 1970. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. In a July 2020 decision, the Board denied this issue, and the appellant subsequently appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). The appellant and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved the appeal by way of a June 2, 2021, Joint Motion for Partial Remand (JMPR). The Parties agreed that the Board erred in several respects. Specifically, it failed to address adequately a January 2011 statement from the appellant that a doctor requested home health care services for the Veteran; December 2012 VA examinations for the Veteran's Parkinson's disease and posttraumatic stress disorder (PTSD); and the fact that the Veteran was unable to attend other scheduled April 2014 examinations due to hospitalization. The Parties also agreed that the Board should consider whether a retrospective medical opinion also would be warranted. By a June 7, 2021, Order, the CAVC adopted the Parties' JMPR, vacating the Board's previous denial with respect to the instant matter and remanding it for further action consistent with the JMPR. Upon further review, the Board finds that remand is the proper course of action. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge (VLJ) shall remand the case to the agency of original jurisdiction (AOJ), specifying the action to be undertaken. 38 C.F.R. § 20.904(a). Under 38 U.S.C. § 1114 (r)(2), if the veteran, in addition to such need for regular aid and attendance, is in need of a higher level of care, such veteran shall be paid a monthly aid and attendance allowance at the rate of $2,983, in lieu of the allowance authorized in clause (1) of this subsection, if the Secretary finds that the veteran, in the absence of the provision of such care, would require hospitalization, nursing home care, or other residential institutional care. Furthermore, specific to subsection (r)(2) the need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. The existence of the need for such care shall be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician. (Emphases added). In his Supplemental Remarks to Veteran's Substantive Appeal; Claims Certified to the BVA 6.24.21, Counsel argues that the Veteran should be granted SMC on remand to the Board because a "2012 VA examiner agreed" that the Veteran required "aid and attendance during his life." The examination to which Counsel refers indeed states that the Veteran was "unable to care for himself and [was] cared for by his wife . . . and two adult sons." The Parkinson's and PTSD VA examinations likewise note that the Veteran received such care and assistance from his family. The Board, however, does not find that this information is enough to grant SMC at the (r)(2) level. As the statute clearly states, compensation at that level requires the need for a "higher level of care" "in addition to . . . regular aid and attendance." 38 U.S.C. § 1114 (r)(2). The Secretary, thus, must find that, in the absence of such care, the Veteran would have required "hospitalization, nursing home care, or other residential institutional care." Ibid. Subsection (r)(2) also contains further requirements: the "higher level of care" must be considered as need for "personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional," and that determination is to be made by a VA physician or other contracted individual. Ibid. The Board cannot find that the requirements of subsection (r)(2) have been satisfied simply from the one statement from the December 2012 VA examiner. That statement confirms what the Board already knowsthat the Veteran relied upon his family members for regular aid attendance. Furthermore, the Veteran's family members have not been shown to be people "licensed to provide" "personal health-care services." Ibid. Whether the Veteran's condition required anything more than assistance from his immediate family requires a medical judgmentsomething the Board cannot provide, see Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991)from a VA professional. Thus, a retrospective medical opinion is required. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008); 38 C.F.R. § 20.904(a). The matter is REMANDED for the following action: 1. Obtain a retrospective medical opinion from an appropriate examiner for the appellant's SMC claim. The examiner shall answer the following: During the Veteran's life, was he in need of a higher level of care, in addition to such need for regular aid and attendance, that, in the absence of such higher care, he would have required hospitalization, nursing home care, or other residential institutional care? Note: In answering this question, "need for a higher level of care" shall be considered to be need for personal health-care services provided on a daily basis in the Veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. 2. Conduct any other development deemed necessary and then readjudicate the appellant's claim. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.