Citation Nr: 0005940 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 97-17 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to special monthly pension based upon the need for regular aid and attendance of another person or by reason of being housebound. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Amanda Blackmon, Counsel INTRODUCTION The appellant served on active duty from December 1950 to July 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to special monthly pension. The appellant filed a notice of disagreement with this rating determination in January 1992. However, this issue was deferred pending disposition of another issue on appeal before the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999). A statement of the case relative to the issue of entitlement to special monthly pension was forwarded to the appellant in February 1997. The appellant thereafter perfected his appeal in this matter in April 1997. The RO confirmed and continued its denial in this matter in June 1999. REMAND The law governing the award of special monthly benefits provides that for an award of aid and attendance, the law contemplates an individual with such severe physical disabilities that he is unable to care for himself. The determination of entitlement to additional pension is based upon the overall ability to care for one's own needs. The fact that one may require assistance from another person in the performance of one or more specified functions is not, in and of itself, determinative of the need for regular aid and attendance. 38 U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). Determinations as to need for aid and attendance must be based upon actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a) (1999). A review of the record indicates that the most recent comprehensive and thorough aid and attendance examination occurred in 1991. The appellant was privately evaluated at that time with venous insufficiency of the lower extremities, evaluated as very severe in nature; recurrent stasis ulcers, evaluated as chronic and intermittent in nature; type II diabetes, noted to be well controlled; and post phlebitic syndrome, chronic left leg edema, evaluated as moderate in nature. The examiner indicated that the appellant was in need of aid or attendance, but did not evaluate the appellant to be housebound. In this context, the examiner indicated that the appellant was able to leave his home only with the assistance of another person, and that he was essentially wheelchair bound. It was the examiner's assessment that the appellant was able to walk and get around, and dress himself unassisted. The examiner indicated that the appellant was not able to wash and keep himself ordinarily clean and presentable. It was further the examiner's impression that the appellant was not able to protect himself from the hazards of daily living. More recently, the appellant underwent VA general medical examination in 1997. The medical examination report referenced diagnostic findings of varicose veins with venous insufficiency and slight lower extremity swelling; insulin- dependent diabetes mellitus with peripheral neuropathy; ataxia likely due to diabetes; obesity; status post vein stripping of the lower extremity; kyphosis; and hypertension. A review of this report indicates that the focus of the examination was to evaluate the nature and severity of the appellant's current conditions, with no opinion offered with respect to whether the severity of the appellant's disabilities established a need for regular aid and attendance, or that the appellant was housebound. Following a preliminary review of the record, the Board finds that this case requires specifically tailored evidentiary development. In cases such as this, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The Court has held that the duty to assist includes the duty to obtain a thorough and contemporaneous VA examination. Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991); Littke v. Derwinski, 1 Vet. App. 90 (1990). Accordingly, this case is REMANDED to the RO for further development, as indicated below: 1. The appellant should identify all medical treatment, VA and private, received subsequent to June 1999. The RO should attempt to secure copies of the medical records identified by the appellant for association with the claims folder. The RO should provide the appellant with any necessary authorizations for the release of this information. 2. The appellant should be afforded a VA examination for housebound status or permanent need for aid and attendance. The examiner should complete the examination report, responding to all questions therein, including whether the appellant is able to feed, dress himself, attend to the wants of nature, ambulate outside the home without assistance, etc., and, if not, what specific disabilities are implicated in his inability to perform such self-care tasks. All necessary tests should be performed in connection with this examination. The claims folder should be made available to the examiner for review in conjunction with the examination. Following completion of the above, the RO should review the evidence and determine whether the appellant's claim may now be granted. If not, the appellant and his representative should be furnished an appropriate supplemental statement of the case, and the case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Appeals for Veterans Claims 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. 1999) (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. Deborah W. Singleton Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).