Citation Nr: A25035698 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 250123-502364 DATE: April 17, 2025 REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance/housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1960 to December 1963. As an initial matter, on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law, which went into effect in February 2019, creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. In January 2025, the AOJ denied the claim for SMC based on the need for aid and attendance/housebound status. The Veteran submitted a notice of disagreement VA Form 10182 and elected the direct review lane in January 2025. The Board observes that the AOJ provided the notice of decision on January 9, 2025. The denial of due process may include issuing a Board decision prior to the expiration of the one-year period for a claimant to request a docket change. See Williams v. McDonough, 37 Vet. App. 305 (2024). In this case, the Board is not rendering a decision on the merits but remanding the case. Accordingly, the Veteran's due process rights are not adversely affected by not waiting until January 9, 2026, the end of the period in which to request a docket change. Entitlement to special monthly compensation based on aid and attendance The Veteran appeals the denial of special monthly compensation based on the need of aid and attendance. The Veteran is service-connected for low back degenerative changes, right ankle degenerative changes, left lower extremity radiculopathy, right lower extremity radiculopathy, diabetes mellitus type II, acne vulgaris, right knee degenerative changes and left knee degenerative changes. The Veteran argues that he needs the aid and attendance of another as he cannot function on his own. He claims because of his service injuries to his ankles, knees and back he has a gait and walks with a cane, walker and/or crutches which make it difficult for him. The record contains a May 2014 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, which appears to be written by the Veteran but signed by a physician. The examination indicates that the Veteran was restricted in daily activities/functions due to his right ankle, left and right knee, and back injury at that time. The record also shows, however, that the Veteran had a stroke in 2020 which has impaired his speech, restricted his physical abilities, and caused weakness and paralysis of the limbs on one side of his body. The Veteran is not service-connected for this disorder. Outpatient treatment records continue to show that the Veteran is in need aid and assistance with some activities of daily living. An August 2024 treatment note stated that the Veteran was independent completely until his stroke in 2020 which resulted in right sided weakness and wheelchair dependence. The Board notes, however, that May 2014 examination indicates that the Veteran was not completely independent prior to the 2020 stroke but may have been restricted due to his service-connected disabilities. The AOJ has made favorable findings that the Veteran requires aid and attendance with some daily living activities. Outpatient treatment records also confirm the same. The record, however, is unclear as to whether the Veteran's service-connected disabilities render him in need of aid and attendance when such disabilities are disassociated from his nonservice connected disorders. The Board may only remand for correction of a pre-decisional duty to assist error and "for correction of any other error by the agency of original jurisdiction 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. Here, the Board finds that the RO's failure to afford the Veteran a VA examination in light of the lay statements and outpatient treatment records constitutes a pre-decisional error under the AMA. Accordingly, a remand is warranted to correct a duty to assist error that occurred prior to the rating decision on appeal. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: Schedule the Veteran for an aid and attendance examination to assess the Veteran's functional impairment due to his service-connected disabilities. The examiner should review the entire claims file, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. It is requested that the guides for conducting aid and attendance examinations be used, and that all clinical findings as to the service-connected disabilities be set forth in detail. The examiner is requested to the extent possible determine whether the Veteran's service-connected disabilities can be disassociated from his non-service connected disabilities to determine if the Veteran's service-connected disabilities alone render him in need of aid and attendance of another. The examiner is to consider whether service-connected thoracolumbar, right ankle, right and left lower extremity radiculopathy, diabetes mellitus, acne vulgaris and right and left knee disability causes the following: the inability of Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; the inability of the Veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; and the incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. In so finding, the examiner must specifically document when the need for regular aid and attendance started. A complete rationale is required for all opinions rendered. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.