Citation Nr: 21014169 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-37 841 DATE: March 11, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1974 to December 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge on June 11, 2020, with his spouse, as a duly sworn witness, and his attorney also testifying. A transcript of this hearing has been produced and associated with the claims file. In August 2020, the Veteran’s attorney requested a 60 day extension of time to submit additional evidence and argument in support of the appeal. This Motion was granted in August 2020. The Veteran’s attorney requested a second 60 day extension of time to submit additional evidence and argument in October 2020. This requested extension period has now expired. By way of background, the Board notes in passing that the Veteran has other claims pending before the Board, including increased ratings and earlier effective dates for major depressive disorder and service connection for other psychiatric disorders. These claims will be the subject of a future Board decision. 1. Entitlement to SMC based on the need for aid and attendance is remanded. The Veteran submitted to examinations opining as to the Veteran’s need for aid and attendance on account of service-connected major depressive disorder on July 29, 2016, and July 24, 2017. See VA Exams ( July 29, 2016 ; July 24, 2017 ). The July 2016 VA examination appears to identify posttraumatic stress disorder as a relevant service-connected disorder, which is not a finding that can be applied as to the Veteran at this time. Meanwhile, the July 2017 examination does not appear to indicate an opinion (either positive or negative) as to whether it at least as likely as not (50 percent or greater probability) that the Veteran is in need of aid and attendance by reason of his service-connected disabilities. Notwithstanding the Veteran’s testimony that the most recent examiner refused to solicit relevant information from his spouse, who is the Veteran’s primary caretaker, see Hearing Tr. (June 11, 2020), at Page 6, the July 2017 examination postdates the Statement of the Case, see SOC (June 21, 2017). Furthermore, the July 2017 examination also relies upon psychiatric examination reports administered as early as December 2007. As of July 2017, the Veteran’s service-connected major depressive disorder was rated as 30 percent disabling prior to March 24, 2009; however, as of a February 2020 rating decision, this initial evaluation has been increased to 50 percent disabling. The Board notes that a private opinion from Dr. Q. A.-S. submitted in December 2020 found that the Veteran was unlikely to maintain even the basic wants and needs of life, was at a high risk of demise from either direct self-injury or profound neglect and that 24 hour case and supervision was required. However, no rationale was provided for this opinion. As a result, the Board concludes that updated examinations are required in order to fairly adjudicate the Veteran’s entitlement to SMC for aid and attendance. See Weggerman v. Brown, 5 Vet. App. 281 (1993); Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). See also 38 U.S.C. § 1114(k) and (s). For all of the above reasons, the Board determines that it is precluded from issuing a final determination herein. While the Board sincerely regrets additional delay, the Board ultimately concludes that a remand is required. The matter is REMANDED for the following action: 1. The Veteran and his attorney should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Forward the claims file, including a copy of this remand, the previous VA examination for aid and attendance and housebound status, and all previous psychiatric examinations of record, to a competent VA examiner. The examiner is asked to supply an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is in need of aid and attendance by reason of his service-connected disabilities, based on the criteria outlined in 38 C.F.R. § 3.352(a). The Veteran is currently service connected for major depressive disorder, which is rated as 50 percent disabling prior to March 24, 2009, and as 100 percent disabling thereafter. Whether or not the Veteran must report to an additional examination is left to the discretion of the examiner. In reaching a conclusion, the examiner should conduct a thorough review of all of the evidence of record. The examiner is asked to focus on the Veteran’s service-connected disabilities and whether these disabilities render the Veteran in need of aid and attendance. In the opinion, the VA examiner should specifically address whether the Veteran requires the aid and attendance of another individual to perform many of the activities of daily living solely because of or as the result of his service-connected disabilities. (Continued on the next page)   A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided, the examiner should so state and explain why an opinion cannot be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.