Citation Nr: 21021401 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-15 314 DATE: April 12, 2021 REMANDED Entitlement to a higher level of special monthly compensation (SMC) beyond level K, L, and S is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1966 to December 1968 and from September 1975 to January 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Washington Processing Center in Washington, District of Columbia. Jurisdiction was transferred to the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran was afforded a personal hearing before the undersigned; the transcript is in the record. In May 2018, this matter was remanded for additional development. At the time of the Board remand, the Veteran was in receipt of SMC at levels K-1 and S-1. In an April 2020 rating decision, the RO granted SMC at levels L-1 and P-2, effective June 4, 2012. Because higher ratings are assignable during the remainder of the period on appeal and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a higher level of SMC beyond level K, L, and S is remanded. The Veteran is currently in receipt of SMC under 38 U.S.C. § 1114(k) (deafness of both ears); (l) (being so helpless as to be in need of regular aid and attendance); (s) (statutory housebound); and (p) (on account of entitlement to a rate equal to subsection (l) with additional disability). He argues that he is entitled to a higher rate of SMC, particularly under 38 U.S.C. § 1114(o) and/or (r). See August 2013 notice of disagreement and September 2013 correspondence. In its February 2021 brief, the Veteran’s representative states that his condition may have worsened since his most recent examination, and therefore requested that the Board either grant a higher level of SMC or remand for a new VA examination and medical opinion. The Veteran’s representative specifically stated that the Veteran was hospitalized for coronary artery disease, a service-connected disability, in August 2020. Pursuant to 1114(o), a higher rate of SMC is warranted if the veteran, as the result of a service-connected disability, has suffered disability under conditions which would entitle him to two or more of the rates provided in one or more subsections (l) through (n) of this section, no condition being considered twice in the determination, or if the veteran has suffered blindness and deafness, or the anatomical loss or loss of use of extremities meeting certain criteria. A veteran is entitled to SMC under 38 U.S.C. § 1114(l) if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. The Veteran is already in receipt of SMC under 38 U.S.C. § 1114(l) based on his service-connected posttraumatic stress disorder. If it is determined that his service-connected heart disability also requires regular aid and attendance, the Veteran could also be entitled to SMC under 38 U.S.C. § 1114(o). Accordingly, and in light of evidence that the Veteran’s service-connected heart disability has worsened, further development is necessary. Additionally, it appears that the medical evidence associated with the record is incomplete. The most recent VA treatment records associated with the record are from August 2020, when the Veteran was hospitalized for his heart condition. Any additional VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from August 2020 to the present. 2. Thereafter, schedule the Veteran for a VA examination (or telehealth interview) to determine the nature and resulting limitations of his service-connected heart disability to assess whether he requires aid and attendance or is housebound. The claim folder must be made available to the examiner. The examiner should comment upon the resulting limitations from the Veteran’s service-connected heart disability and address the following: (a) Whether the Veteran requires the regular assistance of another person in activities of daily living, to include consideration of whether the Veteran is able to dress or undress himself, to keep himself ordinarily clean and presentable; to feed himself, or to attend to the wants of nature; (b) Whether the Veteran requires the assistance of another in protecting himself from the ordinary hazards of daily living; (c) Whether the Veteran is bedridden; and, (d) Whether the Veteran is restricted to his home or the immediate vicinity thereof. The examination report must include a complete rationale for all opinions expressed. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.