Citation NR: 9706393 Decision Date: 02/26/97 Archive Date: 03/04/97 DOCKET NO. 95-39 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than December 19, 1988, for an increased rate of special monthly compensation benefits. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty in the military from February 1969 to December 1970. In July 1995, the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas determined that he was entitled to an increase in the rate of his special monthly compensation benefits, effective from December 19, 1988, for multiple residuals of shell fragment wounds that he sustained while in service. He appealed to the Board of Veterans’ Appeals (Board), requesting that an earlier effective date be assigned. After initiating an appeal, it was indicated in an April 1996 statement that he no longer wanted to be represented in this case by the Paralyzed Veterans of America service organization, and he has proceeded with his appeal since that time on his own behalf. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he was entitled to an increased rate of special monthly compensation (specifically, the need for the regular aid and attendance of another person) as early as January 1971, when he initially filed a claim, and that he continued to be entitled to special monthly compensation at this rate until 1978. He says that he was entitled to special monthly compensation at an even higher level from 1978 to 1989, and, therefore, should receive an earlier effective date than has been assigned by the RO. He says that it was either the responsibility of VA or his representative during prior adjudications to apprise him of any possibility that he may have been entitled to benefits payable at higer levels than what he received, and that, as such, he should not bear the responsibility for a failure to act in any regard in requesting an increase in benefits in years past. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an effective date earlier than December 19, 1988, for the increased rate of special monthly compensation benefits. FINDINGS OF FACT 1. The veteran is service-connected for multiple residuals of shell fragment wounds that he sustained while in the military, including amputations with loss of use of his upper extremities and a lower extremity; he has been in receipt of special monthly compensation benefits due to the severity of his injuries since January 1, 1971. 2. He did not appeal numerous past decisions by the RO, including those promulgated in March 1971, April 1971, October 1972, March 1973, April 1974, December 1978, August 1980, and November 1981, despite being notified of the decisions and of his procedural and appellate rights; the legal and factual determinations and conclusions of the RO in those decisions were reasonable in light of the evidence that was on file at the time that they were made. 3. The veteran filed a claim on December 19, 1989 seeking to have the rate of his special monthly compensation increased, and, at that time, he submitted statements from Dr. Watts and Nurse Sargent in support of the claim. 4. The RO thereafter, in a June 1990 decision, increased the rate of the veteran’s special monthly compensation payments and assigned an erroneous effective date of January 16, 1990; in a later rating decision, in March 1995, the RO assigned an earlier effective date of December 19, 1989, coinciding with the date that the veteran’s claim was received at the RO. 5. In a July 1995 rating decision of the RO, an effective date of December 19, 1988 was assigned in compliance with a liberalizing VA regulation. CONCLUSION OF LAW The criteria for an effective date earlier than December 19, 1988, for an increased rate of special monthly compensation, have not been met. 38 U.S.C.A. §§ 1114, 1155, 5107, 5110, 7105 (West 1991); 38 C.F.R. §§ 3.114, 3.104, 3.105, 3.400, 3.350, 3.352, 20.302 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran sustained multiple shrapnel wounds during service in May 1970 to his head, trunk, and all extremities. Treatment after the incident, in part, involved a below-the- knee amputation of his left leg and a below-the-elbow amputation of his left arm; he also received treatment for disarticulation of his right shoulder and perforated tympanic membranes (eardrums), and he underwent surgery, involving a craniotomy, for a skull defect. The severity of his injuries resulted in him being medically retired from service due to physical disability in December 1970. Upon separation from service, the veteran filed a claim for VA compensation and pension benefits. Service connection has since been established for multiple residuals of the shell fragment wounds, including anatomical loss of both hands (rated as 100 percent disabling), the skull defect (50 percent), the below-the-knee amputation of the left leg (40 percent), damage to muscle group XIV of the right thigh (30 percent), a bilateral hearing loss (30 percent), injury to the right foot (10 percent), and postoperative otitis media (10 percent). A combined rating of 100 percent for the aggregate functional impairment caused by the service- connected disabilities has been in effect since January 1, 1971. In a March 1971 rating decision of the RO, it was determined that the veteran was entitled to special monthly compensation under the provisions of 38 U.S.C. § 314(p) [now codified at 38 U.S.C.A. § 1114(p) (West 1991)] and VAR § 1350(F)(3) [the current regulation is 38 C.F.R. § 3.350(f)(3) (1996)] at the rate intermediate between subsections (m) and (n) on account of amputation of both hands, with one being so near to the shoulder as to prevent the use of a prosthetic appliance, with additional disability caused by the skull defect that was independently ratable at 50 percent or more. Benefits were deemed effective from January 1, 1971. The RO also determined that he was entitled to special monthly compensation under the provisions of 38 U.S.C. § 314(k) [38 U.S.C.A. § 1114(k)] and VAR § 1350(A) [38 C.F.R. § 3.350(a)] on account of anatomical loss of one foot, effective from January 1, 1971. From 1971 to 1978, the veteran continued to receive special monthly compensation benefits at the level alluded to above. Additional claims that he filed during those years for specially adapted housing and loss of use of the right lower extremity were denied by the RO, as were claims by his estranged wife seeking an apportionment of his VA benefits. No appeals concerning any of those issues were perfected to the Board. He was, however, deemed entitled to an annual clothing allowance and a specially prepared motor vehicle to compensate for his handicaps. In October 1978, Congress passed legislation, Public Law 95- 479, entitling certain veteran’s to an increase in the rate of their special monthly compensation. The veteran’s representative at the time, Disabled American Veterans service organization, filed a claim on his behalf in November 1978 seeking an increase in benefits payable. In December 1978, the RO determined that the veteran was entitled to an increase in the rate of his special monthly compensation. He was awarded benefits under 38 U.S.C. § 314(p) [38 U.S.C.A § 1114(p)] at the next higher rate or intermediate rate of subsection (n) due to the loss or loss of use of 3 extremities, and the increase was deemed effective from October 1, 1978. He was notified by the RO of the increase in benefits later in December 1978 and apprised at that time of his procedural and appellate rights. He did not appeal the RO’s decision. In November 1979, the President of the United States signed into law Public Law 96-128, which had earlier been passed by Congress, entitling certain veterans to increased compensation. The RO sent the veteran a letter in August 1980 notifying him that he was entitled to an increase in his rate of compensation as a result of the recent legislation, effective September 1, 1980. He was also apprised of his procedural and appellate rights. He did not appeal the RO’s decision. In October 1981, Public Law 97-66 became effective, entitling certain veterans to an increase in the rate of their special monthly compensation. In November 1981, after reviewing the veteran’s case and circumstances, the RO determined that he qualified for the increase, so he was awarded special monthly compensation under 38 U.S.C. § 314(p) [38 U.S.C.A. § 1114(p)] and VAR § 1350(F)(3) [38 C.F.R. § 3.350(f)(3)] at the rate equal to subsection (o) on account of amputation of both hands, with one so near to the shoulder as to prevent the use of a prosthetic appliance, with a below-the-knee amputation of the left leg, and additional disability caused by the skull defect that was independently ratable at 50 percent or more. Benefits were deemed effective from October 1, 1981. It was also indicated that the veteran was entitled to an additional allowance, under the provisions of 38 U.S.C. § 314(r)(1) [38 U.S.C.A. § 1114(r)(1)] and VAR § 1350(H) [38 C.F.R. § 3.350(h)] subject to VAR § 1552(B)(2) [38 C.F.R. § 3.552(b)(2)] on account of entitlement under subsection (o) and him being in need of the regular aid and attendance of another person. The effective date assigned was October 1, 1981. The RO notified the veteran of its decision to increase the rate of his special monthly compensation later in November 1981, and also in a December 1981 letter, and apprised him at those times of his procedural and appellate rights. He did not appeal the RO’s decision. In December 1985, the RO determined that the veteran was entitled to specially adapted housing assistance under the provisions of 38 U.S.C. § 801(a) [38 U.S.C.A. § 2101(a)] because of anatomical loss of one lower extremity and both upper extremities, which constituted permanent and total disability, and which essentially precluded him from getting from place to place in his home without the benefit of a wheelchair. He was notified of the RO’s decision in January 1986. On December 19, 1989, the veteran submitted a statement to the RO requesting that he receive a higher rate of special monthly compensation. Submitted along with his statement were statements from N. T. Watts, Jr., M.D., and Louise Sargent, R.N. Dr. Watts indicated in his statement that the veteran needed nursing home care on a daily basis. Dr. Watts also pointed out the various types of medication that the veteran was taking for treatment, the treatment that he needed to receive in the future, and provided a description of the nature and severity of his service-connected disabilities. Nurse Sargent indicated in her statement that she was providing personal care and assistance for the veteran on a daily basis. The veteran submitted an additional statement to the RO on January 16, 1990, again requesting that the rate of his special monthly compensation be increased, to the maximum level allowable, because he needed the full-time, live-in assistance of another person to help him dress, cook, clean, eat, take medication, and perform other functions that were essential in his day-to-day living experiences. Also, in March 1990, additional statements were submitted by Dr. Watts and Nurse Sargent to this effect. VA doctors who examined the veteran in May 1990 confirmed that he needed the assistance of another person to perform many of the tasks that were intrinsic to his ability to function from day to day. In June 1990, the RO determined that there was sufficient evidence to increase the rate of the veteran’s special monthly compensation based on his need for the regular aid and attendance of another person, and based additionally on his need for a higher level of care on a daily basis from a skilled provider (without which he would require these services in a hospital, nursing home, or other institution), pursuant to 38 U.S.C. § 314(r)(2) [38 U.S.C.A. § 1114(r)(2)] and 38 C.F.R. §§ 3.350(h), 3.552(b)(2). The effective date assigned was January 16, 1990. In March 1995, the RO determined that it committed clear and unmistakable error when it assigned an effective date of January 16, 1990 in its June 1990 rating decision that increased the rate of the veteran’s special monthly compensation. The RO concluded that the correct effective date was December 19, 1989. Nurse Sargent submitted a statement in June 1995 reporting that she was the veteran’s primary care, live-in nurse from October 1971 to 1978, and that her services during that time included assisting him in bathing, dressing, and taking medication. She also said that, after he had several illnesses, additional services and total care were required from 1978 to 1989. In July 1995, based on a liberalizing VA regulation, 38 C.F.R. § 3.114(a)(3), and the statement from Nurse Sargent, the RO determined that an effective date of December 19, 1988 could be assigned for the most recent increase in the rate of the veteran’s special monthly compensation. The veteran appealed for an earlier effective date, and he gave testimony concerning his claim at a September 1996 hearing at the RO before a traveling member of the Board. At that time, he pointed out that he filed his initial claim for special monthly compensation benefits shortly after service, back in 1971. He alleged that he should have been paid benefits at the full aid and attendance level for the years 1971 to 1978, and that he should be paid benefits at the most recent increased rate of compensation for the years 1979 to 1989 because of an even greater degree of disability. He claimed that any failure, on his part or otherwise, to timely apply for an increase in the rate of his compensation in years past was due to VA neglecting to apprise him that he might be entitled to an increase or, alternatively, to the negligence of the service organization who formerly represented him to do the same. In other testimony, he described various ways that his service- connected disabilities impeded his ability to function from day-to-day, involving many activities that are essential to one’s very existence, and he said that additional equipment could be provided by VA, in the event that he wins this case, which would make his life much easier to endure, including a voice-activated telephone and computer. II. Legal Analysis The veteran’s claim seeking assignment of an earlier effective date is well grounded, meaning that it is at least plausible. 38 U.S.C.A. § 5107(a). All evidence pertinent to his claim has been fully developed, and no additional action is required of VA to satisfy its duty to assist. Id. The effective date of a claim for an increase in disability compensation will be the earliest date that it is factually ascertainable that an increase in disability occurred, provided that a claim is received within 1 year from such date; otherwise, the date of receipt of the claim will mark the effective date. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o)(2). As an initial point, it should be borne in mind that decisions of the RO which are not timely appealed are final and binding on a veteran, absent a showing that clear and unmistakable error was committed. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.105(a), 20.302. This is notably critical in this case because none of the earlier decisions of the RO (with particular reference to those promulgated from 1971 to 1978, which the veteran relies on so heavily in framing his current arguments), were timely appealed, either by him or by someone acting on his behalf. Therefore, the factual and legal determinations and conclusions that the RO made in those decisions, including with respect to such relevant issues as the rate of special monthly compensation that should be assigned or the effective dates relating thereto, may not be overturned simply on the blanket premise that they were incorrectly decided or erroneous. A mere disagreement as to how certain pieces of evidence were weighed or evaluated is not a sufficient basis for a finding of clear and unmistakable error. Russell v. Principi, 3 Vet.App. 310 (1992). Rather, if the veteran wishes to raise a valid claim of clear and unmistakable error in those decisions, as a means of having them overturned, then he must do so with some degree of specificity as to what the nature of the alleged error was, and, of equal or greater significance, he must show that the outcome of the decisions would have been manifestly different, but for the error, and that such a conclusion may not reasonably be debated, without resorting to consideration of evidence (including, in particular in this case, the statements from Dr. Watts and Nurse Sargent) that was not on file at the time of the previous adjudications in question, but instead, surfaced long after the fact in later years. Fugo v. Brown, 6 Vet.App. 40, 44 (1993); Damrel v. Brown, 6 Vet.App. 242, 245 (1994); Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). Here, the veteran is merely alleging that he was entitled to special monthly compensation from 1971 to 1978, at the rate designated for persons in need of the regular aid and attendance of another, because his service-connected disabilities, and their resulting functional impairment, were as severe then as they are now, the implication, of course, being that the rate of compensation currently assigned should therefore relate back to that period in time. However, very general and broad sweeping allegations of error such as this do not satisfy the stringent test for a finding of clear and unmistakable error. Crippen v. Brown, 9 Vet.App. 412 (1996). Moreover, even were, for the sake of argument, it to be assumed that he has stated a claim of clear and unmistakable error with the requisite degree of specificity, records do not show that the outcome of the decisions promulgated by the RO from 1971 to 1978, at least as far as the level of special monthly compensation or the effective dates that were assigned are concerned, were fatally flawed, especially considering that the amount of compensation that he received during those years, at the level that was designated by the RO, was actually greater than what he is now alleging he should have received. In other words, had, as he is now suggesting, he only been paid based on being in need of the regular aid and attendance of another person during that time, with the effective date from January 1, 1971, then this would have correlated to special monthly compensation at the level of “SMC L plus K,” which is a lesser rate of compensation than that which he actually received, “SMC M 1/2 plus K,” which, summarily speaking, was based on the loss of one foot plus the loss of both hands, with additional disability caused by the skull defect that was independently ratable as at least 50 percent disabling. Therefore, his arguments concerning the propriety of those RO rating decisions and the rate of special monthly compensation that he received, as opposed to what he now says he should have received, are effectively rendered moot. Shortly after Public Law 95-479 was enacted in October 1978, it was determined by the RO in December of that year that the veteran benefited from the passage of this legislation, so the rate of his special monthly compensation was increased to the next higher level (“SMC N”), based, in essence, on the conclusion that he had loss or loss of use of 3 extremities. The increase was made effective from October 1, 1978, coinciding with the date that the legislation was passed, as it was designated by Congress to be applied prospectively and not retroactively. The veteran did not appeal the RO’s decision, so, as alluded to above, absent a showing that the decision was clearly and unmistakably erroneous, which there is none, he may not now use it as a basis for having an earlier effective date assigned retroactive to that point in time. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). The rate of the veteran’s compensation was again increased effective September 1980, based on Public Law 96-128 that was enacted the previous year. No appeal of the decision was undertaken by either him or anyone acting on his behalf, and, given that there is no indication that the decision was somehow substantively inadequate, or, for example, that it did not provide the full measure of benefits to which he was entitled (at that time) under the law, there is no basis for assigning increased special monthly compensation benefits retroactive to that point in time. The veteran received an additional increase in payments effective October 1, 1981, to the “SMC R1” level [denoting compensation under 38 U.S.C.A. § 1114(r)(1)], as a result of Public Law 97-66 that was enacted that year, as it was determined that, aside from his prior level of disability, he was in need of the regular aid and attendance of another person to provide services that were vitally important in his ability to function as required from day-to-day. Records show that he would not have been entitled to compensation at the R1 rate were it not for the change in the law, or, as is logically apparent, at the next-higher level of “SMC R2” [denoting compensation under 38 U.S.C.A. § 1114(r)(2)], as there was no indication from the evidence on file at that time suggesting that he required a higher level of care than that contemplated by what was designated by the RO. That is to say, for him to have been entitled to compensation at the R2 level at that time (but even more so, dating back to 1978), not only was it required that he be in need of the regular aid and attendance of another (i.e., meet the criteria for the R1 level), but also, it was necessary to show that, in the absence of the care of a licensed, skilled provider of professional services on a daily basis (or someone under the regular supervision of such a licensed health-care professional), he would have required hospital, nursing home, or other institutional care to provide the services needed. It is not enough to show that this is the case years after the fact, well beyond the statutory period for timely appealing that decision [see 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a)], as only evidence that was on file at the time that the decision was made is reviewable on the grounds of clear and unmistakable error (see Damrel, cited above); this is equally true for the laws and regulations which govern the case. With these points in mind, the Board notes that the statements from Dr. Watts and Nurse Sargent to the effect that the veteran required the necessary care and services of another, in addition to not being on file at the time of the RO decision in question, were not submitted until long after the one-year appeal period following notification of the decision had expired. It was not until December 19, 1989 that the veteran would again request that the rate of his special monthly compensation be increased, and this was when he submitted the statements from Dr. Watts and Nurse Sargent that ultimately proved to be beneficial to his claim. When the RO increased the rate of his special monthly compensation to the R2 level, it initially assigned an erroneous effective date of January 16, 1990, as he had also submitted a statement concerning the merits of his claim on that date. However, this mistake was subsequently corrected by the RO in its March 1995 rating decision, when it assigned an earlier effective date of December 19, 1989, which coincided with the date of receipt of his claim. This was a correct application of the governing law and regulation by the RO, as the date of receipt of the claim marks the effective date of the increase in compensation. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o)(2). With the benefit of a liberalizing VA regulation, 38 C.F.R. § 3.114(a)(3), and the statements that were submitted by Nurse Sargent during the course of this appeal, including as recently as June 1995, the RO was able to assign an effective date even earlier than December 19, 1989 in its July 1995 rating decision. The RO noted in that rating action that, because the veteran had effectively established, via the June 1995 statement from Nurse Sargent, that he was entitled to special monthly compensation at the R2 level as far back as October 1, 1978, when Public Law 95-479 was enacted, and continued to be so entitled from that time until the date of receipt of his claim (December 19, 1989), an effective date one year prior to this date, meaning December 19, 1988, could be assigned under 38 C.F.R. § 3.114(a)(3). What appears to be causing most of the veteran’s confusion in this case is the notion that VA can now conclude that he is entitled to receive special monthly compensation at the R2 level, and, in the process, acknowledge, based on the statements from Dr. Watts and Nurse Sargent, and the liberalizing VA regulation, 38 C.F.R. § 3.114(a)(3), that he was entitled to compensation at this level as far back as October 1, 1978, has continued to be so entitled since that time, but cannot receive benefits at this level retroactive to that point in time. He is, however, unfortunately, ignoring some very basic tenets of the VA adjudication process, the first being that one must timely appeal a decision of the RO if one has disagreement with any component of it. If one does not, then this is viewed as satisfaction with what was concluded by the RO in its entirety, and the decision becomes final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. To then have the decision overturned in later years, that is, beyond the period for timely appealing it, becomes a much greater task, since the burden of proof for having this occur is much higher, namely, that it be shown that the RO committed clear and unmistakable error. 38 C.F.R. § 3.105(a). For the reasons discussed above, this is a stringent standard and difficult burden to meet, particularly since any evidence submitted after the decision in question was made cannot be considered in support of the claim, since a mere different opinion as to how certain pieces of evidence were weighed or evaluated will not suffice, since only the law and regulation in effect at the time may be considered, and since there must be some measure of specificity as to what the alleged error was. This is why, although the statements from Dr. Watts and Nurse Sargent ultimately proved to be favorable to the veteran’s claim, they had much less effect in having an effective date prior to December 19, 1988 assigned, since there was no legal basis for the RO to go back beyond this point in time. As a final point, the Board finds the veteran’s allegations that VA failed to give him proper notice of the possibility that he might be entitled to an increase in his rate of compensation, to the R2 level (that is, within one year of the enactment of Public Law 95-479 in October 1978), to be without merit. It is interesting that he also finds similar fault with the service organization that was representing him at the time, the Paralyzed Veterans of America, and has apparently become so disgusted that he recently withdrew his designation of representation in favor of this organization. However, notwithstanding his contentions to the contrary, records show that he was duly apprised of all benefits to which he might be entitled under this law when it was enacted in October 1978, and, in fact, it was his representative who initiated a claim shortly thereafter, in November 1978, on his behalf, seeking an increase in benefits payable based on new allotments provided under this law. His rate of special monthly compensation was subsequently increased by the RO in December 1978 to the level that was borne out by the evidence, and he has failed to show that the conclusions of the RO were not reasonable based on the evidence available at that time. The veteran did not thereafter initiate a timely appeal, as was his responsibility if he had disagreement with any determination that was made in the decision, and, not having done so, he is left to live with the decision absent the requisite showing of clear and unmistakable error. The preponderance of the evidence is against an earlier effective date. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and favorable disposition is not warranted.. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The claim for an effective date earlier than December 19, 1988, for increased special monthly compensation, is denied. RICHARD B. STANDEFER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -