Citation Nr: 21074438 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-40 563 DATE: December 15, 2021 REMANDED Entitlement to a higher level of special monthly compensation (SMC) based on aid and attendance at the 38 U.S.C. § 1114(r)(2) level is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1986 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied a higher level of SMC based on aid and attendance at the "R1" rate. The Veteran disagreed with that determination and subsequently perfected an appeal to the Board. While the matter was pending on appeal, the RO, in a July 2018 rating decision, granted entitlement to SMC based on aid and attendance at the "R1" level, effective November 8, 2010. However, as a higher level of SMC is available, the July 2018 rating decision does not represent a full grant of the benefit sought and the matter therefore remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that an appellant is presumed to be seeking the maximum benefit under law). The instant matter was then previously before the Board in November 2019, at which time it was remanded for further development. Upon completion of that development, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case in July 2020 in which it continued to deny SMC based on the need for aid and attendance at the "R2" rate. The matter was thereafter returned to the Board for further appellate consideration. Unfortunately, the Board finds that further action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. As noted, in November 2019, the Board remanded this matter for further development. Specifically, the matter was remanded for the AOJ to schedule the Veteran for a new VA aid and attendance examination because a January 2018 VA examination for not adequate to rely upon for adjudication purposes. It appears that the AOJ undertook to schedule the Veteran for an examination in December 2019; however, a December 2019 internal document indicates the Veteran's examination was cancelled because the Veteran did not show for the appointment. The AOJ then obtained a medical opinion regarding whether the Veteran was in need a higher or more skilled level of aid and attendance in July 2020. Notably, the Veteran's representative asserts the Veteran was never scheduled for, or notified of, the examination. See November 2021 Appellate brief. Review of the file does not reflect a notification letter was sent to the Veteran, nor does the evidence otherwise reflect the date and time of the scheduled examination. The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination. However, it is unclear whether the Veteran was properly scheduled and notified of the 2019 examination. Moreover, the Veteran's representative has specifically asserted that the Veteran did not receive notice of the VA examination. For these reasons, the Board finds it necessary to remand the matter for the Veteran to be afforded another opportunity to appear at a VA examination. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). The matter is REMANDED for the following action: Schedule the Veteran for a VA Aid and Attendance Examination of all service-connected disabilities to determine the level of regular aid and attendance 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). All indicated tests and studies should be conducted. The electronic claims folder, to include a copy of the remand, must 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. (Continued on the next page) The physician's opinion must address whether the Veteran's service-connected disabilities at least as likely as not (50 percent or greater probability) caused him to be in need of personal health-care services provided on a daily basis in his home by a person who is licensed to provide those services or who provides those services under the regular supervision of a licensed health-care professional (contact with the professional must be at least monthly) to the extent that the absence of such care would require hospitalization, nursing home care, or other residential institutional care. The physician must address the Veteran's statements regarding the need for daily bowel and bladder care to avoid infections, and the possibility of his being hospitalized in the absence of that care. The physician should specifically address if that care is needed to prevent hospitalization. The physician 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 physician must explain why. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.