Citation Nr: 22017689 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-05 859A DATE: March 25, 2022 REMANDED Whether the overpayment of VA compensation benefits in the amount of $13,025.90 was validly created is remanded. 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 served on active duty from July 1965 to April 1968 and from October 1969 to October 1972. The case is on appeal from a September 2017 Regional Office (RO) decision and a November 2017 rating decision. The Board notes that although a September 2020 VA 27-0820 (Report of General Information) notes that the Veteran desired a "direct review" by a Veterans Law Judge, the Veteran did not opt-in to the modernized appeal system. In September 2021, the Veteran testified at a Board hearing. In a February 2022 letter, the Veteran was notified that his motion for advancement on the docket (AOD) was denied due to the absence of sufficient cause shown. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.902(c). 1. Whether the overpayment of VA compensation benefits in the amount of $13,025.90 was validly created. The Veteran maintains that the overpayment of VA compensation benefits in the amount of $13,025.90 was not properly created. He asserts that he notified VA of his divorce in the same month that his divorce became final. See September 2021 Board hearing testimony. In that respect, a February 2017 VA 27-0820 (Report of General Information) reflects the Veteran's report that he was divorced from L. on March 2, 2010. In September 2017, the RO removed L. as the Veteran's spouse from his award of VA compensation benefits effective April 1, 2010 (the first day of the month following the reported date of divorce). The RO's action resulted in the creation of an overpayment. See November 2018 Award Print. A December 2018 letter from the Debt Management Center (DMC) reflects an overpayment in the amount of $13,025.90. The Board notes that although the retroactive reduction of compensation as a result of removing L. from the Veteran's award was effective in 2010, at the September 2021 Board hearing, the Veteran indicated that he was divorced from L. in 2007. See also March 2014 VA examination. In view of the foregoing, remand is warranted to verify the date of the Veteran's divorce from L. 2. SMC based on the need for regular aid and attendance or by reason of being housebound. The Veteran seeks SMC. He maintains that due to his service-connected disabilities, he needs regular aid and attendance of another person and/or is housebound. The Veteran's service-connected disabilities are posttraumatic stress disorder (PTSD) rated at 100 percent and pruritis, rated at 30 percent. Although the Veteran does not currently meet the requirements for statutory housebound SMC under 38 C.F.R. § 3.350 (i)(1), aid and attendance SMC is available if the Veteran, as the result of service-connected disabilities, is permanently bedridden or so helpless as to require regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). In that respect, a September 2020 examination from a VA clinic reflects the Veteran's report that he gets confused and needs assistance with medication administration, noting that the Veteran's anxiety and depression may increase and require more assistance with activities of daily living and mobility. In view of the Veteran's assertion at the September 2021 Board hearing that his PTSD symptoms are worse and result in confusion and inability to manage on his own, VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes an October 2020 VA 27-0820 (Report of General Information) indicates that the Veteran had a caregiver. As such, on remand, an attempt should be made to obtain any caregiver records. In view of the remand, VA treatment records since the issuance of the June 2019 supplemental statement of the case (SSOC) should be associated with the record. While on remand, the RO will have an opportunity to consider the additional evidence associated with the file since the June 2019 SSOC, including the September 2020 examination. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records since June 2019. 2. Attempt to obtain caregiver records. 3. Obtain a copy of the divorce decree or other documentation verifying the date of the Veteran's divorce from L. and associate it with the record. 4. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine whether he needs the aid and attendance of another person or is housebound. The examiner should comment on the functional limitations as to requiring the regular aid and attendance of another person and/or rendering the Veteran housebound, due to service-connected disabilities. Rationale for all opinions expressed should be provided. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.