Citation Nr: 21023728 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-39 181 DATE: April 21, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. Entitlement to SMC based on loss of use is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1988 to July 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. This case was before the Board in January 2020. The Veteran’s claims for entitlement to SMC based on the need for aid and attendance and loss of use were remanded for additional development. The case is now again before the Board for further appellate action. The Board notes that, in a December 2020 rating decision, the Agency of Original Jurisdiction granted entitlement to a TDIU, effective May 10, 2020. As this issue on appeal was granted, the issue is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). 1. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran’s claim for entitlement to SMC based on the need for aid and attendance. In pertinent part, SMC is payable for where a veteran is so helpless as to be in need of regular aid and attendance due to service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. In February 2019, the Veteran submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The form was signed by a physician who reported that the Veteran had diagnoses of SLE and seizure disorder. The physician reported that the Veteran was able to feed himself but not prepare his own meals. It was reported that he needed assistance in bathing and tending to hygiene needs but does not require nursing home care. The physician described the restrictions to the Veteran’s upper extremities as the following: weakness, osteoporosis, low back pain, and a history of a compression fracture. The physician described the restrictions to the Veteran’s lower extremities as the following: venous stasis, varicose veins, and a history of deep vein thrombosis and foot ulcers. The physician reported that the Veteran was able to leave his home once per week with assistance to attend medical appointments. In March 2020, the Veteran was provided a VA examination to assess his SLE. The examiner noted that the Veteran has carried a diagnosis of SLE since 2008. The Veteran reported that he was able to walk only a very short distance but had been ordered not to bear any weight on his feet. The examiner described the following symptoms related to the Veteran’s SLE: increased fatigue and tiredness and increased rash to bilateral arms, chest, back, and neck. The examiner also reported that the Veteran has Raynaud’s phenomenon related to his SLE. The examiner reported that the Veteran’s SLE did not produce severe impairment of health. The examiner reported the Veteran’s autoimmune disease impacted his ability to work as “decreased ability to focus and concentrate with lupus erythematosus and related symptoms.” A September 2020 private medical record reported that the Veteran required home health services due to non-pressure ulcers of both the right and left foot. The Veteran required skin wound care twice per week. It was reported that the patient was homebound because it was medically contraindicated for the patient to leave his house because of the need for assistance for an individual when ambulating with his walker. It was also reported that the Veteran required skilled nursing to teach the Veteran and caregiver on disease process management, wound care management, and pain management. Upon review, considering the evidence of functional impairment, the Board finds clarification is required to determine whether the Veteran’s service-connected disabilities, alone, render him so helpless as to be in need of regular aid and attendance. The physician who completed the February 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance did not specify whether the described impairments were caused by a service-connected disability. Therefore, the Board finds that a remand is necessary in order to afforded him a VA examination so as to determine whether he is so helpless so as to be in need of regular aid and attendance due to his service-connected disabilities. Remand is also warranted to obtain records from the Social Security Administration (SSA). At the Veteran’s June 2019 Board hearing, the Veteran’s representative testified that the Veteran was receiving disability compensation from the SSA, but he did not believe that SSA records were included in the Veteran’s claim file. The evidence of record indicates the Veteran was in receipt of SSA disability benefits. A May 2019 VA SSA inquiry results sheet indicates the Veteran was entitled to SSA disability payments in August 2010 and received $1,363.90 in July 2012. In January 2020, the Board remanded the Veteran’s claims for entitlement to SMC based on the need for aid and attendance and loss of use. The Board directed the RO to undertake any development necessary for the remanded claims. VA has not sought the Veteran’s SSA records and records from SSA may support the Veteran’s claim. Moreover, the Board acknowledges that these records are with a Federal facility and that VA has an increased obligation to obtain records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Accordingly, remand is warranted to obtain records from SSA. 2. Entitlement to SMC based on loss of use is remanded. While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran’s claim for entitlement to SMC based on the need for loss of use. At the Veteran’s June 2019 Board hearing, the Veteran testified that he had undergone four foot surgeries trying to save them from poor circulation. He stated that his feet are not weight-bearing and that he needed assistance from his wife to get out of bed. A February 2020 examination request indicated that the Veteran needed to be evaluated for his systemic lupus erythematosus (SLE). The examiner was directed to address any issues related to any loss of use for his SLE. In March 2020, the Veteran was provided a VA examination to assess his SLE. The examiner noted that the Veteran had carried a diagnosis of SLE since 2008. The Veteran reported that he was able to walk only a very short distance but had been ordered not to bear any weight on his feet. The examiner reported that the Veteran’s SLE did not produce severe impairment of health. The examiner reported the Veteran’s autoimmune disease impacted his ability to work as “decreased ability to focus and concentrate with lupus erythematosus and related symptoms.” In the remarks section of the examination report, the examiner indicated that “the claimed loss of use symptom is subsumed under the current diagnosis, there are no additional diagnoses rendered at this time.” The Board finds that the examiner did not adequately address the Veteran’s loss of use of his feet for purposes of SMC. The Veteran was afforded a VA skin disabilities examination in September 2020. The examiner noted a diagnosis of bilateral foot ulcers since 2014. The examiner noted the Veteran was treated with debridement of recurrent ulcers for less than six weeks. The examiner reported the Veteran’s foot ulcers impacted his ability to work as he has had trouble bearing weight on his feet, as well as walking and standing. It was also noted that the Veteran uses a cane and a “camboot.” The examiner opined that it was at least as likely as not that the Veteran’s bilateral foot ulcers were proximately due to or the result of his SLE. As rationale, the examiner explained that foot ulcers are clinically known to be associated with SLE. As the September 2020 VA examiner found that the Veteran’s bilateral foot ulcers were at least as likely as not proximately due to or a result of his service-connected SLE, the Board finds that a remand is warranted to address whether the Veteran’s right and left foot functioning is comparatively the same as that which would result from an amputation and use of a prosthetic. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. 2. Obtain all outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 4. After the development described above has been completed, schedule the Veteran a VA examination to determine his eligibility for SMC based on the need for the regular aid and attendance of another person and loss of use. The record, to include a copy of this remand must be made available to the examiner. It is up to the discretion of the reviewing examiner as to whether a new examination is necessary to provide adequate opinions. 5. Based on a review of the record and results of any examination conducted, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran requires the aid and attendance of another person as a result of impairment caused by a service-connected disability or disabilities. 6. In forming the opinion, the examiner must consider both mental and physical impairment necessitating assistance performing activities of daily living, including dressing and undressing, keeping himself ordinarily clean and presentable; feeding; attending to the wants of nature; frequently adjusting of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; or protecting him from hazards or dangers incident to his daily environment. 7. The examiner should consider the previously mentioned February 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance that describes the Veteran’s functional impairment. 8. After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing examiner, the reviewing examiner must also provide an opinion as to whether it is at least as likely as not that no effective function of the Veteran’s left or right foot remains other than that which would be equally well-served by an amputation stump below the knee with use of a suitable prosthetic appliance? 9. The examiner should set forth all examination findings and a complete rationale for any opinion expressed should be provided. 10. After the development described above, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.