Citation Nr: 21040844 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-41 905 DATE: July 7, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1966 to October 1967. His decorations include the Combat Action Ribbon and the Purple Heart. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In June 2021, the Veteran and his wife testified at a virtual Board hearing before the undersigned Veterans Law Judge. Entitlement to SMC based on the need for regular aid and attendance is remanded. SMC is payable where a veteran suffers from service-connected disability that renders him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114; 38 C.F.R. § 3.350(b). A veteran shall be considered to be in need of regular aid and attendance if: he/she is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See also 38 C.F.R. § 3.351(c). Determinations as to the need for regular aid and attendance are based on the actual requirement of personal assistance from others. In determining such need, consideration is given to the inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of disability cannot be done without aid (excluding the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of the veteran to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers of his daily environment. Bedridden is a proper basis for such a determination and will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). In the present case, September 2015 and December 2016 private evaluations include findings to the effect the Veteran requires the regular aid and attendance of another person. However, neither of those reports clearly indicates whether his service-connected disabilities are of such severity, alone, so as to give rise to the need. In order to qualify for SMC, the evidence must show that service-connected disability alone, considered without regard to other disabilities, has resulted in the Veteran's need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). In June 2018, a private physician indicated that the Veteran had reported a progressive decline in function over the last few months. During the June 2021 hearing, the Veteran similarly reported that his condition had gotten worse since the time of the private evaluation in December 2016. Due to the lack of clarity in the prior reports, and in light of his assertions of worsening, another examination is warranted. VAOPGCPREC 11-95 (April 7, 1995); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran also testified at the June 2021 hearing that he had received VA treatment since the time that records of such treatment were last procured in June 2018. Records of that more recent treatment should be procured as well. See 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination for purposes of assessing his need for aid and attendance. After examining the Veteran and reviewing the claims file, the examiner should express a clear opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's service-connected disabilities render him unable to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he requires the use of any special prosthetic or orthopedic appliances that frequently need adjustment, which by reason of service-connected disability cannot be done without aid; whether his service-connected disabilities render him unable to feed himself through loss of coordination of the upper extremities or through extreme weakness; whether his service-connected disabilities render him unable to attend to the wants of nature; whether his service-connected disabilities are causative of incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from the hazards or dangers of his daily environment; and whether his service-connected disabilities, through their essential character, actually require that he remain in bed. A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.