Citation Nr: 22040154 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-17 159 DATE: July 13, 2022 REMANDED 1. An effective date prior to October 29, 2018, for a special monthly pension (SMP) based on the need for aid and attendance. 2. Whether the death pension benefits effective March 1, 2013, were properly terminated. 3. Whether the death pension benefits effective February 1, 2015, were properly reduced. 4. Whether the death pension benefits effective January 1, 2017, were properly terminated. REASONS FOR REMAND The Veteran served on active duty from May 1943 to April 1946. The Veteran died in April 1991 and the appellant is his surviving spouse. The case is on appeal from November 2015, September 2017, and January 2018 decisions. Most recently, the Board remanded the claims on appeal for additional development in June 2021. 1. An effective date prior to October 29, 2018, for an SMP based on the need for aid and attendance. 2. Whether the death pension benefits effective March 1, 2013, were properly terminated. 3. Whether the death pension benefits effective February 1, 2015, were properly reduced. 4. Whether the death pension benefits effective January 1, 2017, were properly terminated. The appellant filed a claim for a SMP in 2014. In December 2014, the appellant submitted a treatment record showing she was being treated for cancer in December 2013. In December 2017, she submitted private treatment records and a statement from a private physician. The physician reported treating the appellant since February 2008 and that she has a history of mixed dyslipidemia, anemia, osteoarthritis, neuropathy, anxiety, breast cancer, and diverticulitis. In the January 2018 rating decision, the RO denied the appellant's claim that she requires aid and attendance. The appellant filed a notice of disagreement (NOD) for this decision later that month. Thereafter, on October 29, 2018, the appellant was afforded an examination to determine if she requires aid and attendance or is housebound. The examiner found based on history and the findings of the examination that the appellant required assistance to sustain living alone. In a January 2019 decision, the Board granted an SMP based on the need for aid and attendance. Later in January 2019, the RO issued a rating decision granting the need for aid and attendance effective October 29, 2018. However, the record does not show that the RO mailed the appellant notification of this decision. In March 2019, the appellant submitted medical expenses. She claimed that she paid her brother $1,000 per month for in-home assistance since March 2013. In an April 2019 decision, the Board found that the aid and attendance claim was no longer on appeal based on the January 2019 rating decision. In May 2019, the appellant submitted a statement again indicating that she is seeking an SMP based on the need for aid and attendance since 2013. In a July 2020 decision, the RO accepted as valid the appellant's claimed in-home care expenses paid to her brother to assist her with daily activities as a medical expense for purposes of determining pension benefits since November 1, 2018. The Board finds that an SMP due to the need for aid and attendance prior to October 29, 2018 remains on appeal pursuant to the January 2018 rating decision. The Board notes that an April 2019 Board decision found that the SMP claim was resolved by the January 2019 rating decision. However, that rating decision did not grant the benefits as of the date of claim and the appellant has continued to request an earlier effective date for an SMP since that rating decision and the April 2019 Board decision. In addition, this issue is inextricably intertwined with the pension claims remaining on appeal. In this regard, the appellant's eligibility to pension benefits depends on whether in-home care expenses paid to her brother qualify as medical expense deductions for determining eligibility to pension benefits and that determination is based on whether or not the appellant required aid and attendance. See 38 C.F.R. § 3.278(d)(3)(iii)(A). Therefore, the Board finds that the issue of an SMP prior to October 29, 2018 remains on appeal pursuant to the January 2018 rating decision appealed by the appellant. On remand, the RO should obtain an opinion as to when the need for aid and attendance first arose. See 38 C.F.R. § 3.402(c). These claims are REMANDED for the following action: 1. Forward the claims file to the examiner that performed the October 29, 2018, examination, if possible. If the same examiner is unavailable, then forward the claims file to another appropriate examiner. The examiner is asked to assess, based on the appellant's statements and medical evidence of record, the approximate date when her disabilities first resulted in the need for aid and attendance. The necessity for a physical examination is left to the examiner's discretion. (Continued on the next page) If the examiner cannot provide the requested opinion, the examiner should explain whether it is due to the limitation of knowledge in the medical community at large. A rationale should be provided for all opinions expressed. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.