Citation Nr: 0007452 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-21 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to special monthly pension based on the need for the regular aid and attendance of another or at the housebound rate. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel REMAND The appellant served on active duty from October 1951 to September 1955 This matter came before the Board of Veterans' Appeals (the Board) on appeal from an August 1998 rating decision of the Jackson, Mississippi, Florida, Department of Veterans Affairs Regional Office (VARO). Initially, the Board finds that the appellant has submitted evidence that is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) and Murphy v Derwinski, 1 Vet.App. 78 (1990). The appellant contends that special monthly pension should be awarded to him. He states that he has balance difficulties and other disabilities that prevent him from carrying out the activities of daily living. The record shows that the appellant was previously granted special monthly pension on account of the need for regular aid and assistance from 1976 to 1982. At this time, his major disability was multiple sclerosis, variously diagnosed as conversion reaction and astasia abasia. The appellant was found mentally incompetent in April 1976. On VA examination in December 1981, the appellant was found competent. By a rating decision dated January 1982, VARO determined that the appellant no longer met the criteria for special monthly pension based on the need for regular aid and attendance, and found that he was not housebound. Therefore, special monthly pension benefits were terminated, effective January 31, 1982. At the time special monthly pension benefits were terminated, the appellant's ratable disabilities were listed as multiple sclerosis (100%), hypertension (10%), post operative residuals of cholecystectomy (0%), seborrheic dermatitis (0%), and ruptured lumbar disc (0%). The combined disability rating was 100 percent. In November 1997, the appellant requested reinstatement of special monthly pension benefits. However, the record later developed in connection with that claim contains evidence of additional disabilities that have not been rated. These new disabilities include anxiety, chemical imbalance of serotonin, diabetes, enlarged prostate, disc bulge with radiculopathy, and bladder control problems. We observe that the law allows for an increased rate of pension where an otherwise eligible veteran is in need of regular aid and attendance. 38 U.S.C.A. § 1521(d) (West 1991). A person is considered in need of regular aid and attendance if the person is a patient in a nursing home due to mental or physical incapacity, or is helpless or blind, or so nearly helpless or blind, as to need the aid and attendance of another person. 38 U.S.C.A. § 1502(b) (West 1991);38 C.F.R. § 3.351 (1999). When a veteran does not qualify for regular aid and attendance, an increase in pension is warranted when in addition to having a single permanent disability rated as 100 percent disabling under the regular schedular criteria, and without resort to individual unemployability, the veteran also has a separate and distinct disability, or disabilities, rated as 60 percent disabling and which involve different anatomical segments or bodily systems as that of the 100 percent disability; or the veteran is substantially confined as a direct result of his disabilities and the confinement will continue for the remainder of his lifetime. 38 U.S.C.A. §§ 1502, 1521(e) (West 1991); 38 C.F.R. § 3.351(d) (1999). The United States Court of Appeals for Veterans Claims has held that, in adjudicating pension claims, a specific percentage evaluation of each of a veteran's various disabilities must be assigned. Roberts v. Derwinski, 2 Vet. App. 387 (1992), Talley v. Derwinski, 2 Vet. App. 282 (1992); Brown v. Derwinski, 2 Vet. App. 444 (1992), and Abernathy v. Derwinski, 3 Vet. App. 461 (1992). A careful effort to assign correct ratings for each disability is necessary in this case inasmuch as the criteria for special monthly pension at the housebound rate include entitlement criteria that may be satisfied through the percentage evaluations assigned for the disabilities shown in the record. Additionally, a review of the evidence of record reflects that a VA examination for the purpose of evaluating the need for regular aid and attendance or housebound status was not conducted. The Board believes this examination is necessary to properly evaluate the claim and, in particular, to ascertain the whether the appellant's disabilities render him so helpless as to require the regular aid and attendance of another person. We note that decisions of the Board must be based on all of the evidence available. Gilbert v. Derwinski, 1 Vet.App. 78 (1990). The duty to assist includes the duty to request information that may be pertinent to the claim and to develop pertinent facts by conducting a thorough medical examination. See Littke v. Derwinski, 1 Vet.App. 90 (1990). Therefore, the Board believes that VA treatment records should be requested and a VA Aid and Attendance or Housebound Status examination should be conducted. In view of the foregoing, the issue of entitlement to special monthly compensation based on a need for regular aid and attendance or at the housebound rate is remanded to VARO for the following actions: 1. VARO should obtain all VA treatment records dated since October 1998 and all records of private treatment reported by the appellant since November 1996, including those records from Drs. Ross and Campbell. 2. VARO should review the record on appeal in its entirety and identify each ratable disability shown therein. VARO should thereafter assign a percentage evaluation to each ratable disability. In rating the disabilities, VARO should determine whether the medical evidence is adequate and, if not, any necessary further examinations should be scheduled. Notwithstanding, the appellant should be scheduled for a VA Aid and Attendance or Housebound Status examination. All indicated tests should be accomplished and all clinical findings should be reported in detail. The examiners must provide a comprehensive report containing full rationale for any opinion expressed. On the VA Aid and Attendance or Housebound Status examination report, the examiner should certify whether or not the appellant requires regular aid and attendance of another person or he is housebound in fact. 3. The appellant should be scheduled for a VA psychiatric examination. All indicated tests should be accomplished and all clinical findings should be reported in detail. The examiner must assign a numerical code under the Global Assessment of Functioning Scale (GAF) and should include a definition of the numerical code assigned. The examiner must provide a comprehensive report containing full rationale for any opinion expressed. 4. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. No action is required of the appellant unless further notice is provided. The Board does not intimate any factual or legal conclusions as to the final disposition warranted in this appeal. This claim must be afforded expeditious treatment by VARO. 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the VAROs 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. C.P. RUSSELL 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).