Citation Nr: 0812688 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-01 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a higher level of special monthly compensation based on the need for regular aid and attendance. 2. Entitlement to an effective date prior to February 28, 2003, for the grant of special monthly compensation under 38 U.S.C.A. § 1114, subsection (s). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from October 1962 to July 1966 and from August 1966 to March 1971. This case comes before the Board of Veterans' Appeal (Board) on appeal from a May 2003 rating action rendered by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2006, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. In January 2007, the appeal was remanded to the RO via the Appeals Management Center (AMC), in Washington, DC., for additional development. The development has been completed and the case has been returned to the Board for disposition. FINDINGS OF FACT 1. The appellant is not shown to be blind, or nearly blind, or institutionalized in a nursing home on account of service- connected physical or mental incapacity; his service- connected disability is not shown to render him unable to care for most of his daily personal needs without regular assistance from others or to protect himself from the hazards and dangers of his daily environment. 2. On February 28, 2003, a claim for special monthly compensation was received by VA; an informal claim, formal claim, or written intent to file a claim for service connection for special compensation was not received by VA prior to this date. CONCLUSIONS OF LAW 1. The requirements for special monthly compensation based on the need for the regular aid and attendance of another person have not been met. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.352 (2007). 2. The criteria for entitlement to an effective date prior to February 28, 2003, for an award of special monthly compensation under 38 U.S.C.A. § 1114, subsection (s), have not been met. 38 U.S.C.A. §§ 5101(a), 5107, 5110 (West 2007); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b) (2005). As a fourth notice requirement, VA must "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b) (1); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Notice must be provided "at the time" that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini at 119 (2004). This timing requirement applies equally to the initial-disability- rating and effective-date elements of a service connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Pursuant to Board remand, the AMC sent to the appellant a VCAA letter dated January 2007 that essentially complied with statutory notice requirements as outlined above. Therein, VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, VA notified the appellant that he should submit evidence in his possession or alternatively provide VA with sufficient information to allow VA to obtain the evidence on his behalf. The appellant was advised of the specific evidentiary requirements for showing entitlement to increased benefits based on the need for aid and attendance. The appellant was also notified of the legal requirements governing the assignment of effective dates of an evaluation or award. While the January 2007 VCAA notice was provided after the initial rating decision, the Board finds that there is no prejudice to the appellant in this timing error because the claims were subsequently readjudicated in December 2007 and VA sent the appellant a Supplemental Statement of the Case dated the same notifying him of the actions taken and evidence obtained or received. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Essentially, the appellant has not been deprived of information needed to substantiate his claims and the very purpose of the VCAA notice has not been frustrated. Also, the Board notes that, because the claims are denied as discussed in the following decision, the benefit sought could not be awarded even had there been no timing defect; as such, the appellant is not prejudiced by a decision in this case. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. VA treatment records have been associated with the claims folder. The appellant was afforded a VA examination in April 2003. VA provided the appellant a videoconference hearing in May 2006. Furthermore, the appellant has been given the opportunity to submit additional pertinent evidence in his possession; none has been received. The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). The duty to assist and notify as contemplated by applicable provisions, including VCAA, has been satisfied. As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). I. Aid and Attendance Compensation at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l). Determinations as to the need for aid and attendance must be based on the actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: Inability of the 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 the claimant to feed himself through loss of coordination of the 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 the hazards or dangers inherent in 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). The appellant is rated at the 100 percent level for lumbar disc disease status post multiple surgeries, 100 percent level for involuntary bowel movements, and 40 percent level for urinary dribbling. Report of VA examination dated February 2003 shows that the appellant can bear weight as tolerated and walk without the assistance of another person for 5 to 6 blocks. It was noted that he required a lumbar corset. The examiner checked the box showing that the appellant required the daily personal health care services of a skilled provider without which he would require hospital, nursing home, or other institutional care. Report of VA examination dated April 2003 reflects complaints of constant pain. It was noted that the appellant lived alone in a single family dwelling, and spent the vast majority of his day taking care of himself, which including cleansing himself after episodes of incontinence. The appellant reported that he does laundry and prepares meals with the help of his daughter, whom he sees 5 times a week. The appellant came to the examination by himself. The appellant was able to shave, toilet, fasten his clothes, use strap on shoes, and go shopping once or twice a week. Use of a rigid back brace was noted, which impaired mobility, prevented him from tying his own shoes. The examiner stated that the appellant did not have the capacity to protect himself from hazards and dangers of daily environment because of immobility. There was also a deficit of weight-bearing, balance and propulsion. The diagnoses were severe degenerative disc disease with severe immobility, constant pain with weakness, lack of endurance, easy fatigability, along with involuntary bowel movements and urinary dribbling. VA treatment records dated 1995 to September 2004 are associated with the claims folder. In pertinent part, these show that the appellant is followed for multiple medical problems including is service connected back, incontinence, and urinary dribbling. A February 2004 treatment note shows that the appellant plays and groom 3 dogs, several hours daily in the morning, goes to Camp Pendleton, and visits Lake O'Neil. He reported shopping with his daughter, whom he sees several times a week. A March 2004 treatment note reflects that the appellant drives and that he was recently at Camp Pendleton. Another March 2004 treatment note reflects that the appellant had had dinner out with his daughter and that she was away on vacation. An April 2004 treatment note reflects that the appellant was going on a daily 1 hour walk. In May 2006, a videoconference hearing was conducted before undersigned Veterans Law Judge. The appellant testified that he lives with his daughter, is unable to perform any household chores, and has difficulty with toileting hygiene because of his back immobility. His daughter works, but helps the appellant with his shoes and socks and "other medical needs." He denied walking and caring for the dogs, cooking, and yard work. The appellant acknowledged for the record that he is not blind or bedridden, that he is able to take care of the wants of nature without assistance. The appellant further acknowledged that he drove himself to this hearing, parked the car, and walked to the hearing without the aid of a cane, walker, or other assistive device. In this case, the Board finds that there is essentially no evidence that the appellant's service- connected disorders cause him to be so helpless as to require regular aid an attendance of another person. While it is clear that the appellant has physical limitation due to his service- connected back disability with impaired mobility and that he is assisted to some extent by his daughter, the evidence demonstrates he is nonetheless capable of performing an array of daily activities that include driving a car, visiting Camp Pendleton, shopping, dressing, and shaving. The evidence shows that the appellant is not dependent upon another person for bathing, dressing, feeding himself, or other activities of daily living. He is not blind or permanently bedridden. The evidence suggests that the appellant leaves his home regularly and cares for himself in his daughter's absence, whether to work or vacation. In view of the appellant's self-reported activities, and with consideration of the medical record, the evidence shows that the appellant is in fact capable of protecting himself from hazards and dangers of daily environment; as such, the Board assigns the VA examiners comment regarding this matter diminished probative value. Accordingly, weighing the evidence of record, the Board concludes that the requirements for increased special monthly compensation based on the need for regular aid and attendance of another person are not met. 38 U.S.C.A. §§ 1114(l)(s), 5103A; 38 C.F.R. §§ 3.350, 3.352. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). II. Effective Dates In May 2006, a videoconference hearing was conducted before undersigned Veterans Law Judge. With respect to his claim for an earlier effective date, the appellant argued that he should have been assigned an effective date for special monthly compensation from the middle or late 1990's, coinciding with his 5th back surgery. A review of the record shows that the RO denied special monthly compensation (aid/attendance and at the housebound rate) in a September 2001 rating decision. The appellant was notified of that decision by letter dated October 2001. On February 28, 2003, VA received a letter from the appellant's representative requesting on his behalf special monthly compensation based on the need for regular aid and attendance or at the housebound rate. Report of VA examination dated November 2002 accompanied this request. By a May 2003 rating decision, the RO increased the evaluation for back disability to the 100 percent disability level. Also, the evaluations for involuntary bowel movements and urinary dribbling were increased to 100 percent and 40 percent, respectively. Thereafter, pursuant to 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i), the RO awarded special monthly compensation based on status post multiple surgeries for lumbar disc disease rated as 100 percent, and involuntary bowel movement and urinary dribbling associated therewith rated at 60 percent or more. Except as otherwise provided by law, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a). This statutory provision is implemented by a regulation which provides that the effective date for disability compensation will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; see Norris v. West, 12 Vet. App. 413, 421 (1999), distinguishing between an original claim and a claim for increased rating, the latter of which may be initiated by a medical examination or hospitalization, under 38 C.F.R. § 3.157. Based upon a complete review of the evidence on file, the Board finds that the effective date of February 28, 2003, is the earliest effective date assignable for special monthly compensation under 38 U.S.C.A. § 1114 (s). VA received a claim for special monthly compensation on February 28, 2003. As to whether a claim was received earlier, the Board finds no evidence of there being such a claim. The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. "Application" is not defined in the statute. However, in the regulations, "claim" and "application"' are considered equivalent and are defined broadly to include a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992) (citing 38 C.F.R. § 3.1(p)). In the appellant's case, no such communication was received until February 28, 2003. The Board has considered the appellant's contention that the effective date should extend to the 1990's and his 5th back surgery. However, his contention has no legal merit since effective dates are specifically tied by law to the date of a claim and the record shows that the appellant's had no prior outstanding claims. The Board observes that the RO denied a claim for special monthly compensation in September 2001, the appellant was notified, no appeal was filed, and this decision was final. The Board is constrained by the law and regulations made by the Congress governing the establishment of effective dates for the award of compensation. Accordingly, the claim is denied. ORDER A higher level of special monthly compensation based on the need for regular aid and attendance is denied. An effective date prior to February 28, 2003, for the grant of special monthly compensation under 38 U.S.C.A. § 1114, subsection (s), is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs