Citation Nr: 21023730 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-28 432A 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 of a creative organ is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1951 to August 1955. He died in July 2018. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s spouse is the Appellant. This matter was previously before the Board in December 2019. The issue of entitlement to a compensable rating for a residual scar was denied and the issue of entitlement to an earlier effective date for the assignment of a 100 percent evaluation for peritoneal mesothelioma was remanded. The Appellant appealed the December 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In a November 2020 Joint Motion for Partial Remand (JMPR), the Appellant abandoned the entitlement to a compensable rating for a residual scar claim and CAVC remanded the issues of entitlement to SMC based on the need of aid and attendance and SMC for loss of use of a creative organ, as the claims were explicitly raised by the record. 1. Entitlement to Special monthly compensation (SMC) based on the need for aid and attendance 2. Entitlement to SMC based on loss of use of a creative organ In a February 2017 correspondence, the Veteran’s Representative argued the Veteran’s symptoms should establish SMC based on the need for aid and attendance. In December 2017 the Representative argued SMC based on loss of use of a creative organ was warranted, citing to an article discussing a comorbidity between sexual dysfunction and cancer. The Board finds remand is warranted. During the appeal period prior to his death, the Veteran was service-connected for residuals of peritoneal mesothelioma evaluated at 100 percent and a noncompensable residual scar associated with the peritoneal mesothelioma. He has a combined evaluation of 100 percent since August 5, 2013. The July 2018 death certificate indicated he died from mesothelioma of the peritoneum with metastasis of the colon. It is reasonable that an individual rated as 100 percent for a terminal illness such as mesothelioma may manifest physical and cognitive debility warranting an award of SMC. However, a review of the record fails to provide any medical records discussing the Veteran’s general medical condition and care for the period on appeal prior to his death. In this case, the appellant has not have identified evidence or provided a theory of entitlement or other details for consideration SMC based on a need for of regular aid and attendance and loss of use of a creative organ. See 38 U.S.C. § 1114(k) and (l); 38 C.F.R. § 3.350(b), 3.352(a). In order to assess whether the benefits sought may be granted, more detailed information is required. The Board notes a December 2019 Board decision remanded an earlier effective date claim for the 100 percent evaluation of the Veteran’s peritoneal mesothelioma. The remand directives indicated the RO should obtain any outstanding medical records relevant to the Veteran’s peritoneal mesothelioma. In December 2019 correspondence the RO requested outstanding medical records, to include private records, from the Appellant. To date, no medical records, VA or private, have been added to the claims file. The Appellant is reminded the duty to assist is not a one-way street, and, to qualify for disability compensation, the Appellant is required, with the assistance of VA, to provide the Board with the legally required information to effectuate a grant. See 38 U.S.C. § 5103A(a); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is not the duty of the Board to take a Veteran’s disability and develop a claim without aid and information from the Veteran or in this case, the Appellant. Based on the evidence of record, the Board is unable to render a decision without additional development, to include obtaining medical records from the private oncologist. Accordingly, and in order to allow that all reasonable efforts are made to assist the claimant in substantiating the claim, a remand is warranted. The matters are REMANDED for the following action: 1. With any assistance required from the Appellant, obtain any outstanding medical records, to include private treatment records relevant to the Veteran’s peritoneal mesothelioma. 2. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.