Citation Nr: 21029404 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 11-09 916 DATE: May 13, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound is remanded. REASONS FOR REMAND The Veteran's service included periods of active duty for training (ACDUTRA) from June 1979 to August 1979, and from January 1980 to March 1980; a period of full time training duty from March 1982 to July 1982; and a period of active duty from December 2004 to September 2006. This matter arose from the Veteran's underlying increased rating claim for posttraumatic stress disorder (PTSD), an issue which was previously appealed to the Board of Veterans' Appeals (Board) from a March 2009 rating decision. In the Board's November 2015 decision, the Board inferred the issue of entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound as part of the Veteran's claim for increased compensation; thus, the issue was added to the appeal and remanded for further development. See Akles v. Derwinski, 1 Vet. App. 118 (1991). However, the Veteran's increased rating claim for PTSD was adjudicated in the November 2015 decision and is no longer before the Board. In May 2012, the Veteran had a hearing before a Veterans Law Judge (VLJ) for his underlying increased rating claim. A transcript from that proceeding is associated with the record. However, the VLJ who conducted the hearing is no longer employed by the Board. As a result, the Veteran was advised of his right to request another optional Board hearing in a November 2020 letter. However, in a December 2020 written correspondence, the Veteran responded that he did not want to appear at another Board hearing. Therefore, there are no outstanding Board hearing requests. The record also shows that the agency of original jurisdiction (AOJ) received a VA Form 21-22 appointing the Marine Corps League as the Veteran's representative on October 26, 2007. Although the Veteran later submitted a VA Form 21-22a for attorney Seth A. Watkins on March 10, 2016 and October 18, 2017, both VA Forms 21-22a specifically limited the scope of the representation to issues concerning the Veteran's competency and the Department of Veterans Affairs' (VA's) proposal to find him incompetent. In this regard, a February 2016 rating decision proposed a finding of incompetency. A subsequent February 2018 rating decision found that the Veteran was considered competent, and the record does not indicate that there is any pending appeal regarding this issue. As the private attorney limited the scope of his representation, 38 C.F.R. § 14.631(f)(2) provides that the Veteran's general power of attorney was revoked for only that claim and the Marine Corps League remains the Veteran's representative for all other matters not related to the issue of whether the Veteran is competent. Consequently, the Marine Corps League is the representative for the current appeal. 1. Entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound is remanded. In the November 2015 remand, the Board directed the AOJ to schedule the Veteran for a VA examination to determine if he had a need for regular aid and attendance or was housebound due to his service-connected disabilities. The examiner was asked to opine as to whether it was at least as likely as not that the Veteran's service-connected disabilities alone rendered him so helpless as to require the regular aid and attendance of another person or result in physical or mental impairment that left him substantially confined to his dwelling and immediate premises (with reasonable certainty that such disability or disabilities and resultant confirmed would continue throughout his lifetime). In response to the Board's remand, a Compensation and Pension Exam Inquiry reflects that the Appeals Management Center (AMC) initially requested an Aid and Attendance or Housebound Examination and medical opinion on December 24, 2015. However, a subsequent December 28, 2015 e-mail from Compensation and Pension to the AOJ stated that the Veteran reported he no longer wanted to pursue the claim. A December 29, 2015 Report of General Information indicates that an AMC employee unsuccessfully attempted to contact the Veteran via telephone in relation to this report; and a December 31, 2015 letter to the Veteran requested that he return an enclosed form to confirm that he wanted to withdraw the appeal. However, a January 20, 2016 Report of General Information later indicated that an AMC employee planned to reschedule the Veteran's appointment for the Aid and Attendance examination after speaking to the Veteran and his wife via telephone. A subsequent Compensation and Pension Inquiry also shows that the AMC requested an Aid and Attendance or Housebound Examination once more on January 20, 2016. A January 21, 2016 Report of General Information reflects that an AMC employee called the Veteran to explain the importance of attending the scheduled appointment. The Veteran reported that a nurse had called to schedule his Aid and Attendance examination for February, but he expressed confusion as to why the nurse was also attempting to schedule him for an appointment for a PTSD review. The Veteran informed the nurse that he would not be attending an examination for his PTSD as he did not trust the examiners with their evaluations, and the VA Medical Center was a trigger for the Veteran. The Veteran also reported that he thought he would want to withdraw his appeal if such an examination was required. The AMC employee then indicated that she told the Veteran that she had spoken with the VA Medical Center, and the two examinations were different; but he would be asked some questions about his PTSD. In a separate January 21, 2016 Report of General Information, the AMC employee noted that she received an e-mail from the VA Medical Center stating that the Veteran declined a PTSD examination. However, the AMC employee responded by calling the VA Medical Center as she had scheduled an Aid and Attendance examination rather than a PTSD review. The VA Medical Center employee apparently confirmed that an Aid and Attendance examination was separate from a PTSD review, and the VA Medical Center employee indicated that she would update the VA Medical Center's records to reflect that the Board was only asking for an Aid and Attendance examination. The Veteran later attended a VA Aid and Attendance/Housebound examination in February 2016. The examiner noted in the report the that it was less likely than not that the Veteran's service-connected disabilities, excluding PTSD, rendered him so helpless as to require the regular assistance of another person in attending to the ordinary hazards of daily living; and the examiner also noted in the report that the Veteran was not restricted to his home and its immediate vicinity thereof. However, the examiner added that it would be speculative to comment as to whether the Veteran's service-connected PTSD rendered him so helpless as to require the regular aid and attendance of another person or left him substantially confined to his dwelling and immediate premises as the Veteran had another PTSD (mental) examination that was cancelled. The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination "when entitlement to a benefit cannot be established" without the scheduled examination. 38 C.F.R. § 3.655 (a), (b). In this case, however, the Veteran did attend the February 2016 VA Aid and Attendance/Housebound that was specifically requested by the Board in its November 2015 remand. It also appears that he received guidance that it was unnecessary to attend a separate VA examination related to his PTSD, and the AMC employee apparently received confirmation from the VA Medical Center that the two examinations were separate in addition to providing the VA Medical Center with clarification that the Board was not requesting a VA examination specific to the Veteran's PTSD disability. The Board notes that it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Based on the foregoing reports that preceded the February 2016 VA examination, it is unclear whether a separate VA examination specific to the Veteran's PTSD was actually necessary in order for the examiner to provide an opinion regarding the functional effects of the disability in terms of his claim for SMC based on the need for regular aid and attendance or housebound status. The Board consequently finds that the February 2016 VA examiner's rationale is inadequate, and an additional VA medical opinion should be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). If an examination is deemed necessary, one must be provided. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment related to his claim for SMC based on the need for regular aid and attendance or by reason of being housebound. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include records dated since March 2018. 2. After the preceding development in paragraph 1 is completed, obtain a VA medical opinion from a qualified examiner that addresses the Veteran's claim for SMC based on the need for regular aid and attendance or by reason of being housebound. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The VA examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a permanent need for regular aid and attendance due to his service-connected disabilities. The examiner should opine whether, as a result of the service-connected disabilities, the Veteran requires assistance on a regular basis to: dress or undress himself, or keep himself ordinarily clean and presentable; adjust frequently any special prosthetic or orthopedic appliances; feed himself due to loss of coordination of upper extremities or through extreme weakness; attend to the wants of nature; or to protect himself from the hazards or dangers incident to his daily environment. That is, all functional impairments caused by the service-connected disabilities should be set out. The VA examiner should also comment as to whether it appears that the Veteran is housebound, due to his service-connected disabilities. The examiner should specifically determine whether the Veteran is substantially confined to his dwelling or the immediate premises as a direct result of his service-connected disabilities. The examiner must provide a complete explanation for all opinions. If the examiner is unable to render the requested opinion without resorting to speculation, he/she must explain whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the benefit sought is not granted to the Veteran's satisfaction, 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. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.