Citation Nr: 21076744 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-14 503 DATE: December 27, 2021 REMANDED Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance is remanded. REASONS FOR REMAND Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's outstanding service. The Veteran, who served on active duty from July 1965 to August 1966, was clearly a credit to the United States Navy and his service to our country is greatly appreciated. Unfortunately, the Veteran passed away in July 2020, during the pendency of this appeal. The appellant, his surviving spouse, has been found eligible as the substituted claimant in the Veteran's appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in January 2020 and August 2021. Entitlement to SMC based upon the need for regular aid and attendance is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of two prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the January 2020 or August 2021 remand directives. See Stegall v. West, 11 Vet. App. 258, 271 (1998). First, in January 2020, the Board instructed the AOJ to attempt to obtain outstanding pertinent medical records, including records relating to treatment at Virgen Milagrosa Medical Center and Nazareth Medical Center. In January 2020, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that treatment pertinent to his claim. The AOJ also provided the Appellant and her representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran's medical records on her behalf. See January 2020 VA Correspondence. In March 2020, the Veteran submitted a release for records relating to treatment at Jesus Nazarene General Hospital. See March 2020 VA Form 21-4142. However, no records relating to such treatment have been associated with the claims file, nor is there any indication that such records have been requested. Second, in August 2021, the Board instructed the AOJ to obtain an opinion as to whether the Veteran required regular aid and attendance from another person. As part of this opinion, the examiner was instructed to address January 2011 and July 2017 VA treatment and examination reports noting that the Veteran's seizure disorder had resulted in cognitive deficits that had compromised his judgment and that the Veteran had requested aid and attendance, in part, due to cerebral dysfunction. In October 2021, a VA opinion was obtained; however, the examiner did not discuss the January 2011 or July 2017 records. See October 2021 VA Aid and Attendance or Housebound Examination. As the Board cannot find substantial compliance with the August 2021 or October 2021 remand directives, a remand is necessary to obtain pertinent outstanding medical records and obtain an adequate opinion regarding the Veteran's need for aid and attendance. See Stegall v. West, supra. Accordingly, the matter is REMANDED for the following action: 1. With the appellant's assistance as appropriate, obtain and associate with the claims file any outstanding pertinent medical records, including records relating to treatment at Jesus Nazarene General Hospital, Nazareth General Hospital, Virgen Milagrosa Medical Center, St. Nino Hospital, and Dr. Antonio Espino Clinic. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Appellant MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician as to whether the Veteran required regular aid and attendance of another person as a result of his service-connected grand mal epilepsy. The entire claims file must be provided to, and reviewed by, the examiner. The examiner is asked to: (a.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's service-connected grand mal epilepsy resulted in disability (physical or mental) requiring the regular aid and attendance of another person to perform the daily activities of living, such as: dressing and undressing; keeping himself ordinarily clean and presentable; feeding; attending to the wants of nature; or protecting him from hazards or dangers incident to his daily environment. (b.) In formulating the requested opinion, the examiner is instructed to consider and specifically address: i. The January 2011 VA Epilepsy Examination, which noted that the Veteran experienced memory problems and cognitive deficits, disorientation, and an inability to perform activities of daily living; ii. The July 2017 private Aid and Attendance examination, which noted that the Veteran experienced cerebral dysfunction; and iii. The Veteran's May 2014 report that, due to a fall, he was unable to walk without a companion. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is also reminded that consideration must be given to ALL of the Veteran's service-connected disabilities, symptoms of such disabilities, and effects of any treatments required for such disabilities. Further, the examiner should NOT consider the impact of any non-service-connected conditions have on the Veteran's ability to adequately perform the activities of daily living. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. (Continued on the next page) If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.