Citation Nr: 0007367 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-16 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to special monthly pension on account of the need for regular aid and attendance or housebound status. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from December 1945 to March 1949. He died in July 1988, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of April 1998, which denied the appellant's claim for special monthly pension. The case was previously remanded in May 1999. REMAND As a threshold matter, we find that the appellant's claim is well-grounded; that is, it is plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1996). In this regard, the file contains an attending physician's statement dated in December 1997, which noted that the appellant was demented, and that it was hazardous for her to leave her home. In addition, a medical received in June 1998 reported that the appellant suffered from disabilities including dementia, probably Alzheimer's type, and that she had poor judgment and insight, and could be potentially harmful to herself and her surroundings. One of the factors establishing a need for aid and attendance is mental incapacity necessitating care and assistance on a regular basis to protect the individual from hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352 (1999). In determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). Consequently, in view of the medical evidence, the claim is well-grounded, and, therefore, the Department of Veterans Affairs has a statutory obligation to assist her in the development of her claim. 38 U.S.C.A. § 5107(a) (West 1991). In connection with the previous remand, the appellant was scheduled for a VA examination to be conducted in July 1999. In June 1999, her son called VA and stated that the appellant was too ill to go to Memphis for the examination, and inquired as to whether an examination could be conducted locally. However, the duty to assist includes obtaining an examination where appropriate. Although the RO obtained the appellant's private medical records, the evidence remains unclear as to the nature and extent of the appellant's disability, in particular, with regard to her mental capacity. Specifically, the actual clinical treatment records, dated from November 1981 to December 1992, and from May 1996 to September 1999, do not show dementia, or indicate that she requires assistance in daily living, or that she is substantially confined to her home or immediate premises. The latter records, dated from 1996 to 1999, are from the Charleston Clinic, where her treatment providers included Dr. Alkhateeb, who wrote, in a December 1997 statement, that the appellant was demented, that it was hazardous for her to leave her home, and that she could perform all of the activities of daily living listed on the form, except to protect herself from hazards in the environment, which she could do "to a limit." However, according to a March 1998 medical statement, which also appears to be from Dr. Alkhateeb, the appellant's medical problems were noted to be hypertension and history of seizures. In addition, Dr. Alkhateeb wrote, in April 1998, with a list of medical problems of the appellant, which were hypertension, chronic dizziness, migraine headaches, and remote history of seizures. Then, in an undated statement received in June 1998, Dr. M. Alkhateeb reported that the appellant suffered from hypertension, remote history of seizures, chronic dizziness, dementia, probably Alzheimer's type, and migraine headaches. It was noted that she became confused at times and had poor judgment and insight, that she could be potentially harmful to herself and her surroundings, and that she got her medication confused and sometimes took the wrong medication. As can be seen, this matter needs to be clarified, and the Board is prohibited from making conclusions based on its own medical judgment. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In view of the statement from the appellant's son that she is unable to travel to Memphis, a distance of approximately 100 miles, for an examination, due to her health, VA should arrange for an examination to be conducted locally, either on a fee basis or by the appellant's private physician, who appears to currently be M. Abushaer, M.D. Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following: 1. The RO should provide for an aid and attendance examination to be conducted locally, either on a fee basis or by the appellant's private physician, M. Abushaer, M.D., of the Charleston Clinic. The purpose of this examination is to determine whether she is housebound (i.e., substantially confined to her dwelling and the immediate premises, with reasonable certainty that the confinement will continue throughout her lifetime), and/or so helpless or so nearly helpless as to require the regular aid and attendance of another person, as defined in 38 C.F.R. §§ 3.351(c) and 3.352(a) (1999). To ensure that the appropriate factors are evaluated, VA Form 21-2680, Examination of Housebound Status or Permanent Need for Regular Aid and Attendance, should be provided to the examiner. In addition, the examiner is requested to specifically discuss the presence or absence of dementia, to include a description of the results of tests used to determine the presence or absence of such a disorder. If dementia is found, the specific manifestations should also be set forth. 2. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete or inadequate, appropriate corrective action should be taken. See Stegall, supra. After completion of the requested development, the case should be reviewed by the originating agency. If the decision remains adverse to the appellant, she and her representative should be furnished a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. While regretting the delay involved in again remanding this case, it is felt that to proceed with a decision on the merits at this time would not withstand Court scrutiny. 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. JEFF MARTIN 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).