Citation Nr: 21072814 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-27 304 DATE: December 6, 2021 ISSUE Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person or housebound status. REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person or housebound status is remanded. REASONS FOR REMAND The Veteran served in the Army from March 21, 1978 to March 20, 1981 and from March 21, 1981 to October 31, 1999. This matter is before the Board on appeal of a February 2016 rating decision. The Board notes that on the Veteran's May 2017 VA Form 9 he requested a hearing before a VLJ via live videoconference. After a number of hearings were postponed, the Veteran was schedule for a hearing to be held on October 1, 2021. The Veteran failed to appear for the scheduled hearing and was marked as a "no show." The Veteran has not provided any good cause explanation for his absence or request to reschedule the hearing, therefore, his hearing request is withdrawn. 38 C.F.R. § 20.702 (d). Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person or housebound status is remanded. The Veteran asserts he is entitled to special monthly compensation based on aid and attendance, as he must rely on his wife for his daily needs, to include preparing meals, medication management, and bathing and tending to his hygiene needs. In a January 2015 statement, his wife reported that due to his service-connected disabilities the Veteran experiences sensitivity to light and sound, daily migraines, inability to concentrate due to pain, and lack of motor skills, and numbness of lower extremities. She asserts that as a result of his manifestations she does all of the cooking, laundry, housework, cleaning, baths him, applies pain patches to his back, and manages his finances. The Board notes that the Veteran has subsequently been determined to be competent to manage his own finances. The Veteran is currently service connected for headaches at 50 percent, partial amputation left ring finger at 10 percent, left shoulder strain (minor) at 10 percent, spondylosis of L4 and L5 at 10 percent, pain disorder associated with migraines at 10 percent, benign bone cyst in left big toe at 0 percent, fracture of right fibula at 0 percent, post-operative open reduction jones fracture of left 5th metatarsal at 0 percent, fracture left elbow at 0 percent, nasal septoplasty at 0 percent, and spider bite scar at 0 percent. The records indicate that the Veteran is blind in his left eye and that the Veteran experiences neuropathy, but such are not service-connected disabilities. The Board has reviewed the VA and private medical examinations and opinions of record. In fact, such examinations and opinions indicate muscle weakness and fatigue and chronic headaches. A March 2014 examination for housebound status indicates difficulty using his upper extremities with some loss of range of motion in his shoulder and difficulty gripping things. The examination also indicates pain and weakness of the lower extremities. An October 2015 examination for housebound status also reported muscle weakness and fatigue and found that such prevent him from tending to his own needs. A July 2015 letter from a private physician noted muscular pain and spasm, decreased motor skills as some of the symptoms that cause the Veteran to need aid and attendance daily. A February 2016 VA examiner noted that the Veteran's daily headaches and daily lower back pain and stated that the Veteran needs assistance with dressing and undressing, bathing, and grooming. Regarding the Veteran's ambulation, he was noted to have a cane, a walker, and an electric scooter, and that his wife assists him when he ambulates. The examiner concluded that the Veteran requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. Given the above examinations and opinions, the Board finds that a remand is needed for clarification as to what disabilities are causing the Veteran's need for aid and assistance, and specifically, clarification as to whether such disabilities are service connected. While each opinion and examination noted the effects of migraines, they also noted muscle weakness, difficulty ambulating, and lower and upper extremity pain and weakness. It is unclear whether such symptoms are the result of service-connected disabilities, or whether such are the manifestations of non-service-connected disabilities. Therefore, upon remand, the Board requests an additional VA examination for such clarification. The matters are REMANDED for the following action: 1. Obtain outstanding private and/or VA treatment records. Advise the Veteran that he may submit any additional medical and non-medical evidence relating to his claim that is not already in VA's possession. Specifically request authorization to obtain pertinent private treatment records from P.R.G., M.D. (private physician who wrote August 2014 letter), and K.Q. (examiner who conducted March 2014 and January 2015 examinations for housebound status). 2. Schedule the Veteran for a VA Aid and Attendance Examination of all service-connected disabilities to determine whether regular aid and attendance is required by the Veteran, to include whether there is a need for a higher level of care. The examination must be conducted by a VA physician, as required by law (see 38 U.S.C. § 1114 (r)(2)). The electronic claims folder should be made available to the VA physician for review before the examination, and such review should be noted in the report. It is requested that the guides for conducting aid and attendance examinations be used, and that all clinical findings as to the service-connected disabilities be set forth in detail. After a review of the evidence of record, the examiner should provide an opinion on the nature and severity of the effects of the Veteran's service-connected The examiner is reminded that the Veteran is currently service connected headaches, partial amputation left ring finger, left shoulder strain (minor), spondylosis of L4 and L5, pain disorder associated with migraines, benign bone cyst in left big toe, fracture of right fibula, post-operative open reduction jones fracture of left 5th metatarsal, fracture left elbow, nasal septoplasty, and spider bite scar on his activities of daily life and his need for the aid and attendance of another person. Any necessary tests and studies deemed necessary should be accomplished. If the Veteran is unable to attend a VA examination due to his current medical condition, the AOJ should attempt to arrange for an on-site examination by the VA examiner at the Veteran's current residence. If an on-site examination is not possible, the VA examiner is asked to offer the requested opinions following a comprehensive review of the claims file. The VA physician is requested to offer the following opinions: (a) Is it at least as likely as not (a probability of 50 percent or greater) that the service-connected disabilities alone render him so helpless as to require the regular aid and attendance of another person? If yes, please example with detailed explanation and rationale. The examiner is directed to identify such manifestations that render the Veteran so helpless as to require regular aid and attendance of another person and to link such manifestations to the service-connected disability. Specifically, If the Veteran experiences muscle weakness and pain, as noted in previous examinations, please indicate whether such manifestations originate with the Veteran's service-connected disabilities and if such manifestations render the Veteran in need of aid and assistance. The examiner is reminded that the Veteran is currently service connected for headaches at 50 percent, partial amputation left ring finger at 10 percent, left shoulder strain (minor) at 10 percent, spondylosis of L4 and L5 at 10 percent, pain disorder associated with migraines at 10 percent, benign bone cyst in left big toe at 0 percent, fracture of right fibula at 0 percent, post-operative open reduction jones fracture of left 5th metatarsal at 0 percent, fracture left elbow at 0 percent, nasal septoplasty at 0 percent, and spider bite scar at 0 percent. (b) Is it at least as likely as not (a probability of 50 percent or greater) that the service-connected disabilities alone result in physical or mental impairment that leave him substantially confined to his dwelling and immediate premises (with reasonable certainty that such disability or disabilities and resultant confinement will continue throughout his lifetime)? The examiner is directed to identify such manifestations that render the Veteran to be substantially confined to his dwelling and immediate premises and to link such manifestations to the service-connected disability. Specifically, If the Veteran experiences muscle weakness and pain, as noted in previous examinations, please indicate whether such manifestations originate with the Veteran's service-connected disabilities and if such manifestations render the Veteran to be substantially confined to his dwelling or immediate premises. The examiner is reminded that the Veteran is currently service connected for headaches at 50 percent, partial amputation left ring finger at 10 percent, left shoulder strain (minor) at 10 percent, spondylosis of L4 and L5 at 10 percent, pain disorder associated with migraines at 10 percent, benign bone cyst in left big toe at 0 percent, fracture of right fibula at 0 percent, post-operative open reduction jones fracture of left 5th metatarsal at 0 percent, fracture left elbow at 0 percent, nasal septoplasty at 0 percent, and spider bite scar at 0 percent. (c) Is it at least as likely as not that the Veteran's service-connected disabilities, as a whole and without consideration of other disabilities, result in such impairment that it would require a higher level of care consisting of the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care? Specifically differentiate which service-connected disability results in which impairment. If not possible, please explain why. To assist in determining whether a service-connected disability amounts to "loss of use" the examiner should provide a detailed objective description of remaining function, quantitative assessment of strength, and description of any pain that affects use. (d) If health care services of a skilled provider are needed, is the Veteran's current caregiver providing qualifying services (e.g., physical therapy, daily injections, placement of indwelling catheters, etc.) under a physician's regular (at least monthly) supervision or the supervision of a licensed health care professional? If a relative or other member of the Veteran's household performs personal health-care services, he or she must be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. 38 C.F.R. § 3.352 (b)(4). For all opinion provided above, the examiner must provide a thorough explanation for any opinion(s) offered, citing to the examination findings or other evidence in the record when necessary to support the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. (Continued on next page.) 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his attorney should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his attorney should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.