Citation Nr: A21020637 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 211004-188931 DATE: December 29, 2021 REMANDED Entitlement to special monthly compensation based on aid and attendance is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Navy from October 1962 to October 1986. The Board of Veterans' Appeals (Board) thanks the Veteran's family for his service. The Veteran died in March 2021, while his claim for special monthly compensation (SMC) for aid and attendance was still pending. The appellant in this appeal is the Veteran's surviving spouse. In April 2021, the appellant filed a VA Form 21-0847 Request for Substitution of Claimant Upon Death of Claimant. In the notification letter for its May 2021 rating decision denying entitlement to SMC, the Department of Veterans Affairs (VA) Regional Office (RO) addressed the appellant and informed her that the decision was made "on your claim for death benefits received April 12, 2021. Because the RO made a decision on the merits and specifically referenced the appellant request for substitution, the Board finds that the RO's response granted the appellant's request for substitution. As such, the Board has jurisdiction to review the appeal on the merits. In May 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a May 2021 rating decision. In September 2021, the RO issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2021 decision. In her October 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021 decision. 1. Entitlement to special monthly compensation based on aid and attendance The issue of entitlement to SMC based on aid and attendance is remanded to correct duty to assist errors that occurred prior to the May 2021 rating decision. The RO obtained an October 2020 examination report (which was added to the record in May 2021) prior to the May 2021 rating decision on appeal. However, this examination report did not make any assessments specific to a claim for SMC based on aid and attendance. Further, the examination report did not clarify whether the aid that the Veteran required prior to his death (as identified on an August 2020 VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) was at least as likely as not due to service-connected disability. Thus, the Board finds that it is necessary to obtain a new medical opinion based upon the evidence of record prior to the Veteran's death. Finally, prior to the May 2021 rating decision on appeal, the Veteran's VA treatment records clearly identified relevant outstanding private treatment records through Dr. S.Y. at Kaiser Permanente and the hospital at Kaiser Permanente; the RO's failure to attempt to obtain these records constitutes a second pre-decisional duty to assist error. A remand is required to allow VA to obtain these records. See, e.g., CAPRI Records dated November 2020 (received May 2021, on the same day as the May 2021 rating decision), March 2020 (received August 2020). The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for Dr. S.Y. and Kaiser Permanente for records generated between August 2020 and the Veteran's death in March 2021. Make two requests for the authorized records from Dr. S.Y. and Kaiser Permanente, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion by an appropriate clinician to determine whether the Veteran's service-connected disabilities, to include COPD and bilateral knee disabilities, were at least as likely as not a cause for why the Veteran required assistance with activities of daily living. The examiner should provide a full description of the disability based on the record available, and report all signs and symptoms necessary for evaluating the Veteran's disability under the SMC rating criteria. In providing an assessment, the examiner should the Form 21-2680 received August 2020, and CAPRI records addressing functional limitations (e.g., CAPRI record dated June 2020). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beeler, C. 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.