Citation Nr: 21007810 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-00 042A DATE: February 10, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on aid and attendance or housebound is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1990 to May 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015, September 2015, and March 2018 rating decisions, respectively, by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2018, the Veteran appeared with his representative for a videoconference hearing before the undersigned. This matter was remanded in July 2019 for additional development. While on remand, in a January 2020 rating decision, the RO granted service connection for sleep apnea. This represents a full grant of the benefits sought, and these issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to special monthly compensation based on aid and attendance or housebound is remanded. Remand is required for issuance of a Supplemental Statement of the Case (SSOC). Additional evidence received by the agency of original jurisdiction (AOJ) after the records have been transferred to the Board of Veterans' Appeals for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues. The Board will then determine what action is required with respect to the additional evidence. 38 C.F.R. § 19.37(b). Evidence received by the AOJ prior to transfer of the records to the Board will be referred to the appropriate rating or authorization activity for issuance of an SSOC unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior SSOC or the additional evidence is not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). In this case, a Statement of the Case for the claim of entitlement to SMC was last issued in April 2020 which was responsive to development requested in the July 2019 Board remand. Since that time, additional evidence relevant to the issues on appeal was added to the file by VA, to include VA treatment records. In December 2020 the Board sent a letter to the Veteran notifying him and his attorney that new evidence had been added, and requested that he reply within 45 days if he would like to waive his right to AOJ review. Otherwise, the Board would assume he does not currently want the Board to decide his appeal. The Board notes that the Veteran submitted an untimely letter responsive to the December 2020 letter that did not communicate whether he wanted to waive his right to AOJ review of the newly submitted evidence. No other correspondence from the Veteran or his attorney have been received regarding waiving AOJ review. Accordingly, remand is required so that a SSOC may be issued. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. The AOJ must readjudicate the issue on appeal considering all pertinent evidence and legal authority. If the disposition remains unfavorable, the AOJ should furnish the Veteran and his representative with an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.