Citation Nr: 0006704 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-15 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to special monthly pension on account of being in need of aid and attendance of another person or on account of being housebound. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. L. Rippel, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, dated in May and June 1998, which denied the benefit sought on appeal. The veteran, who had military service from October 1952 to February 1953, and from September 1954 to June 1956, appealed that denial to the BVA, and the case was referred to the Board for appellate review. REMAND Under 38 U.S.C.A. § 1521, "each veteran of a period of war who meets the service requirements of this section and who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct" shall receive VA pension. 38 U.S.C.A. § 1521(a) (West 1991). Section 1521 further provides for an increased rate of pension, in the form of a special monthly pension, when an otherwise eligible veteran is in need of regular aid and attendance (38 U.S.C.A. § 1521(d)), or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60 percent or (2) is permanently housebound (38 U.S.C.A. § 1521(e)). See also 38 C.F.R. § 3.351(b), (c), and (d) (1999). Initially, the Board notes that a claim for pension is well- grounded if three criteria are met: (1) the veteran had active military service of 90 days or more with at least 1 day being during a period of war (or discharge or release from service during a period of war for a service-connected disability); (2) there is evidence of income which does not exceed the statutory limit; and (3) there is evidence of permanent and total disability productive of unemployability. 38 C.F.R. §§ 3.3, 3.314 (1999); see Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); see also 38 U.S.C.A. § 1521(a), (j). Here, entitlement to a nonservice-connected pension has already been established. This claim is for additional benefits based on the need for regular aid and attendance of another person or on account of being housebound. In essence, the veteran alleges that his disabilities are worse than currently rated and believes that the medical evidence supports his contentions. This is sufficient for a well- grounded claim. See e.g. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation had been considered by VA, he established a well-grounded claim). Therefore, VA has a duty to assist a claimant in the development of facts pertinent to his or her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). However, after careful review of the record, the Board finds that this case is not ready for appellate review. The veteran has contended that he is entitled to special monthly pension primarily because his judgment is so reduced by his nonservice-connected depression with psychosis that he does not have the ability to perform daily functions and is unable to protect himself from daily hazards. Although there are some VA outpatient treatment records relevant to his claim, he has not been afforded a recent examination by the VA to determine specifically whether his mental capacity is so affected as to require regular aid and attendance. See 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(a) (1999); Fenderson v. West, 12 Vet. App. 119, 127 (1999) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996) (where record does not adequately reveal current state of claimant's service-connected disability on initial rating, fulfillment of 38 U.S.C.A. § 5107(a) duty to assist requires a thorough and contemporaneous medical examination)). The June 1998 examination of record is inadequate in this regard because the findings are limited and they do not address the veteran's mental state. In addition, it appears from the veteran's recent outpatient psychiatric records that there are additional VA treatment records which have not been associated with the claims file. An August 1998 psychiatric clinic note refers to a July 1998 psychiatric hospitalization for increased depression with psychosis. Reference is also made to a February 1998 hospitalization for depression. According to the records, this treatment focused primarily on an increase in depression and suicidal thoughts. The VA is deemed to have constructive knowledge of VA facility records and, in this case, has actual knowledge of the existence of these records. As such, they are considered to be evidence which is of record at the time any decision is made and should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). See also VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error...."). Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should attempt to obtain and associate with the claims file VA medical records, including records from the Augusta and the Dorn facilities referred to in the aforementioned medical records. In particular, the RO should request inpatient treatment records of hospitalization in February 1998 and July 1998 as identified in the treatment notes. 2. The veteran should be afforded a VA psychiatric examination in order to determine his need for the aid and attendance of another person or his housebound status based on his nonservice-connected psychiatric disorder. The claims file should be made available to the examiner for review in connection with the examination. The examiner should also be requested to express an opinion concerning whether the veteran's psychiatric disorder renders him housebound as set forth in the applicable regulation or requires the aid and attendance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. Specifically, the examiner should list all restrictions produced by the veteran's psychiatric disability, including restrictions affecting his abilities to dress or undress, to keep himself ordinarily clean and presentable to feed himself, to attend to the wants of nature, and to protect himself from the hazards or dangers incident to his daily environment. If this is not feasible, the examiner should so state. Any opinions expressed must be accompanied by a complete rationale. 3. The RO should then ensure that the requested development has been completed to the extent possible and again consider the issue of special monthly pension on account of being in need of aid and attendance of another person or on account of being housebound. The veteran should then be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Board does not intimate any opinion as to the merits of the case at this time. 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). S. L. KENNEDY 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).