Citation Nr: A25035448 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240916-473310 DATE: April 17, 2025 REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1993 to May 2004. In May 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2024 decision which had (in pertinent part) denied entitlement to SMC based on the need for aid and attendance. In August 2024, the Agency of Original Jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior April 2024 decision and denied entitlement to SMC based on the need for aid and attendance or being housebound. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket and appealed only that portion of the August 2024 rating decision that had denied entitlement to SMC based on the need for aid and attendance. Due to the Veteran's election of the Direct Review docket, the Board may only consider the evidence of record at the time of the April 2024 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding this claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of this claim. 38 C.F.R. § 3.103(c)(2)(ii). REASONS FOR REMAND 1. Entitlement to SMC based on aid and attendance is remanded. Under the Appeals Modernization Act (AMA), the Board may only remand an issue to correct any pre-decisional duty to assist errors and for "correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim." 38 C.F.R. § 20.802(a). While the Board sincerely regrets further delay, for the reasons discussed below, the Board finds that remand is required to correct a pre-decisional duty to assist error. Specifically, remand is required to afford the Veteran a VA examination to ensure a complete record upon which to adjudicate the issue on appeal. The Veteran submitted an October 2023 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, wherein the Veteran's VA treatment provider noted that the Veteran requires assistance in bathing/showering, dressing, tending to hygiene needs, and medication management. However, the October 2023 VA Form 21-2680 considered disabilities for which the Veteran has not been service-connected, including the Veteran's left shoulder problems. The Veteran's current service-connected disabilities include bilateral plantar fasciitis (rated at 50 percent), obstructive sleep apnea (rated at 50 percent), depression (rated at 50 percent), lumbar spine disorder (rated at 40 percent), left knee disorder (rated at 10 percent prior to April 15, 2024 and 40 percent therefrom), right knee disorders (rated at 20 percent), right lower extremity radiculopathy (rated at 20 percent), left lower extremity radiculopathy (rated at 20 percent), right ankle scar disorder (rated at 10 percent), tinnitus (rated at 10 percent), erectile dysfunction (rated at 0 percent), and rhinitis (rated at 0 percent). This results in a combined evaluation of 100 percent. While the Veteran has been afforded various VA examinations that indicate limitations caused by his disabilities, the Board notes that the Veteran has not been provided a VA examination with regard to the claim for SMC based on aid and attendance. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). While the current medical evidence may demonstrate a need for aid and attendance, it is not adequate as it considers nonservice-connected disabilities. Nevertheless, the Board finds that this evidence overcomes the low threshold necessary to trigger VA's duty to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that there was a pre-decisional duty to assist error in not obtaining an opinion to determine if the Veteran required aid and attendance due to his service-connected disabilities. Therefore, on remand, further examination is needed to determine whether or not the Veteran needs aid and attendance of another person due to his service-connected disabilities alone. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA aid and attendance examination with an appropriate examiner. The claims file must be made available for the examiner to review. All relevant tests and studies should be undertaken. If not completely covered through the use of the Disability Benefits Questionnaire (DBQ) form, the examiner's assessment of the Veteran's service-connected disabilities should also include: a) The Veteran's ability to dress or undress himself; b) The Veteran's ability to attend to the wants of nature; c) The Veteran's need for assistance in adjusting any special prosthetic or orthopedic appliance; d) Any incapacity, physical or mental on the part of the Veteran, which requires care or assistance on a regular basis to protect her from hazards or dangers incident to his daily environment; and e) Any other pertinent limitations on the part of the Veteran that might require the regular aid and attendance of another person. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.