Citation NR: 9738548 Decision Date: 11/19/97 Archive Date: 12/02/97 DOCKET NO. 95-15 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to accrued benefits arising from entitlement to special monthly compensation (SMC) on account of requiring regular aid and attendance or at the housebound rate at the time of the veteran’s death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joshua Blume, Associate Counsel INTRODUCTION The veteran had active military service from October 1942 to April 1946. At the time of his death in August 1995, he had perfected an appeal to the Board of Veterans’ Appeals (Board) for entitlement to SMC benefits based on requiring regular aid and attendance or in the alternative at the housebound rate. The appellant is the court-appointed representative of the veteran’s estate. This appeal to the Board arises from a January 1995 rating decision of the Columbia, South Carolina regional office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to accrued benefits, predicated on the veteran’s entitlement to SMC benefits at the time of his death. The appellant disagreed with this decision in December 1995 and the RO issued him a statement of the case in February 1996. He filed a substantive appeal in April 1996. A hearing on appeal before a local hearing officer was conducted in November 1996. The Board notes that the RO advised the appellant in December 1995 that it had denied service connection for the cause of the veteran’s death. As no appeal has been taken from this decision, this issue is not now before the Board. REMAND The appellant essentially contends, on behalf of the veteran’s estate, that entitlement to SMC benefits is established by the evidence of record, and therefore that the veteran’s estate is entitled to the benefits that have accrued for the statutory prescribed length of time. Accrued benefits are payable to a designated set of beneficiaries following the death of a veteran provided that the benefits to which the veteran was entitled at death are “periodic monetary benefits.” The veteran must have been entitled to such benefits by virtue of existing ratings or decisions, or, in the alternative, by virtue of the evidence on file at the time of his death demonstrating entitlement to such benefits. 38 U.S.C.A. § 5121(c), however, provides that if a claimant’s application is incomplete at the time it is originally submitted, VA is to notify the claimant of the evidence necessary to complete the application. The question of what constitutes “evidence in the file at the time of death” was discussed by the Court of Veterans Appeals (Court) in the case Hayes v. Brown, 4 Vet. App. 353 (1993). In that case, the Court analyzed VA regulations implementing 38 U.S.C.A. § 5121, as well as provisions from VA’s Adjudication Procedure Manual, M21-1, concerning what may be considered to be evidence in the file at the time of death. The Court noted at that time that the M21-1 provisions discussed were considered to be binding substantive rules on VA. See Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990). In particular, the Court called attention to then VA Manual M21-1 paragraph 5.25, now VA Manual M21-1 paragraph 5.06(c) which may be found in Part VI thereof. This provision expands on the scope of items which may be deemed “in file” at the time of death even though not associated with the file at the time of the veteran’s death. The current version of the provision discussed by the Hayes case is essentially unchanged. It states that rating decisions cannot be made for accrued amounts until sufficient evidence is secured, and that the following forms of evidence may be considered to be “in file” at the time of death, irrespective of the time of their submission : (1) Service department records; (2) Reports of VA hospitalization; (3) Reports of hospitalization, treatment or examinations authorized by VA; and (4) Reports of autopsy made by VA on the date of death. VA Manual M21-1, Part VI, par. 5.06(c) (1996). In the Hayes case, the question presented to the Court was whether reports of private hospitalization associated with the claims file after the time of the veteran’s death could be considered by VA in the context of a claim filed for accrued benefits. In making an affirmative finding on this point, the Court relied upon what was then 38 C.F.R. § 3.327(b)(1) dealing with the authority of VA to accept private reports of hospitalization or private reports of examination as in effect VA examinations. See Hayes, 4 Vet. App. at 360. The current analogue for present purposes to the above regulation is 38 C.F.R. § 3.326(b) (1996) dealing with examinations, including periods of hospitalization when required by VA. Subsection b states Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination. However, monetary benefits to a former prisoner of war will not be denied unless the claimant has been offered a complete physical examination conducted at a Department of Veterans Affairs hospital or outpatient clinic. According to the Hayes case, the former 38 C.F.R. § 3.327(b)(1), which stated that : any hospital report and any examination report from a military hospital or from a State, county, municipal or other government hospital or recognized private institution which contain descriptions, including diagnoses and clinical and laboratory findings, adequate for rating purposes, of the condition of the organs or body systems for which claim is made may be deemed to be included in the term “Department of Veterans Affairs Examination.” (emphasis added) essentially rendered private hospital reports the equivalent of VA examination reports if so “deemed.” This would have the effect of allowing private hospitalization reports to be considered in accrued benefits claims if they were the substantial equivalents of VA examination reports, that is to say, if the reports from other sources were “adequate for [VA] rating purposes.” Here, the current regulations provide that hospitalization and examination reports obtained from outside sources “may be accepted for rating purposes” provided that they are “otherwise adequate for rating purposes.” In the Board’s judgment, this has the effect of rendering private hospitalization and examination reports potentially the equivalent of “Reports of hospitalization, treatment or examinations authorized by VA.” M21-1 Manual, Part VI, par. 5.06(c)(3) (1996). Here, evidence physically placed in the file at the time of the veteran’s death indicates that he was placed in a nursing home on October 17, 1994 during which time he was housed in a semi-private room and provided with an “intermediate” level of care. He apparently remained in this private nursing home until his death nearly one year later. These private nursing home records were not associated with the file at or before the time of his death, however, under the analysis set forth above, there is a possibility that such records, if adequate for VA rating purposes, could be considered effectively VA documents. Since this is the case, and par. 5.06(c) provides that rating decisions on accrued benefits cannot be made in the absence of “sufficient” evidence, and 38 U.S.C.A. § 5121(c) requires that where applications for accrued benefits are incomplete, VA shall notify the appellant of the evidence necessary to complete the application, it would seem to follow that a remand of this matter is necessary to advise the appellant that the records of hospitalization and treatment, including any final reports of the veteran’s death, of the White Oak Manor-Newberry Nursing Home in Newberry, South Carolina are necessary to complete his application for benefits. Following the receipt of these documents, the RO should determine whether any or all of same are “adequate for VA rating purposes” under 38 C.F.R. § 3.326(b). If they are, they should be considered when adjudicating the claim for accrued benefits. Accordingly, this case is REMANDED for the following actions : 1. The RO should contact the appellant and advise him that the treatment reports, including the final report of death, if any, of the White Oak Manor- Newberry Nursing Home in Newberry, South Carolina, dating from October 17, 1994 to the date of the veteran’s death, are necessary to complete his application for benefits. The appellant should be afforded a reasonable amount of time to obtain these records. 2. Following receipt of any records of treatment from the White Oak Manor- Newberry Nursing Home, the RO should determine whether any or all of them are “adequate for VA rating purposes” under 38 C.F.R. § 3.326(b). 3. Any of the reports which are found to be adequate for VA rating purposes should be considered in the context of the appellant’s application for accrued benefits. 4. When the requested development has been completed, the RO should readjudicate the appellant’s claim. If the decision remains adverse to the appellant, he and his representative should be furnished with a supplemental statement of the case. They should then be afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until he is further informed. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. IRIS S. SHERMAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -