Citation Nr: 1133201 Decision Date: 09/08/11 Archive Date: 09/15/11 DOCKET NO. 07-27 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an effective date prior to June 10, 2003 for the grant of special monthly compensation based on housebound status. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from April 1993 to January 1994. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that, in relevant part, denied an effective date prior to March 13, 2000 for the grant of service connection for posttraumatic stress disorder (PTSD) and found error in a June 2004 rating decision that failed to grant entitlement to special monthly compensation based on housebound status and granted that benefit, effective June 10, 2003. The Veteran provided testimony at a September 2008 hearing before the undersigned Veterans Law Judge. In a June 2009 decision, the Board denied entitlement to an effective date prior to March 13, 2000 for the grant of service connection for PTSD; and remanded the issues of entitlement to an initial rating in excess of 50 percent for PTSD/residuals of brain injury with cognitive damage from March 13, 2000 to April 16, 2001, and entitlement to an initial rating in excess of 70 percent for PTSD/residuals of brain injury with cognitive damage from April 17, 2001 to June 9, 2003 for the issuance of a statement of the case in accordance with Manlincon v. West 12 Vet. App. 238, 240-41 (1999). The issue of entitlement to an effective date prior to June 10, 2003 for the grant entitlement to special monthly compensation based on housebound status was deferred. On March 1, 2010, the RO mailed the Veteran a statement of the case on the issues of entitlement to an initial rating in excess of 50 percent for PTSD/residuals of brain injury with cognitive damage from March 13, 2000 to April 16, 2001, and entitlement to an initial rating in excess of 70 percent for PTSD/residuals of brain injury with cognitive damage from April 17, 2001 to June 9, 2003. A substantive appeal was not received. Hence, these issues are not in appellate status and have not been certified to the Board. They will not be addressed in this decision. The issue of entitlement to an effective date prior to June 10, 2003 for the grant entitlement to special monthly compensation based on housebound status is now ready for appellate review. FINDING OF FACT The Veteran initially met the criteria for entitlement to special monthly compensation based on housebound status on June 10, 2003. CONCLUSION OF LAW The criteria for an effective date prior to June 10, 2003, for the grant of special monthly compensation based on housebound status have not been met. 38 U.S.C.A. §§ 1114, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.350, 3.400 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In an April 2006 letter, prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate a claim for an earlier effective date, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claim. He was advised of how disability ratings and effective dates are assigned. Although the letter did not reference the claim for an earlier effective date for the award of special monthly compensation based on housebound status, the Board finds that the Veteran was not prejudiced by this notice defect because, as outlined below, he had actual knowledge in this regard. The July 2007 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant regulations that pertained to the a grant of special monthly compensation based on housebound status as well as the relevant regulations governing the assignment of an effective date for such an award. The Veteran was thus informed of what was needed to achieve an earlier effective date. Consequently, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any deficiencies that require corrective action. Duty to Assist The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, VA treatment records, VA examination reports, lay statements, and the Veteran's statements and personal hearing testimony provided via videoconference technique before the undersigned Veterans Law Judge in September 2008. Moreover, the VCAA recognizes certain circumstances, such as those presented in this case, where VA will refrain from or discontinue providing assistance if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. 38 C.F.R § 3.159(d) (2010). Here, the law, not the evidence, is dispositive. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (to avoid confusion, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or lack of entitlement under the law, and remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Therefore, the Board finds that no further assistance would substantiate the claim and VA's duty to assist has also been met. Analysis A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2010). A decision issued by the Board is final unless appealed to the United States Court of Appeal for Veterans Claims (Court). 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104(a)(1) (2010). Following receipt of a notice of a timely disagreement, the RO must issue a statement of the case. 38 C.F.R. § 19.26 (2010). A Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b) (2010). Special monthly compensation is a special statutory award in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule. Claims for special monthly compensation, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114 (k)-(s) and 38 C.F.R. §§ 3.350 and 3.352. To establish entitlement to special monthly compensation based on housebound status under 38 U.S.C.A. § 1114(s), the evidence must show that a Veteran has a single service-connected disability evaluated as 100-percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability, or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i) (2010). The assignment of effective dates of awards is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2010). On March 13, 2000, the Veteran filed a claim for service connection for PTSD. After the notice and duty to assist provisions had been provided, in a February 2003 rating decision, the RO granted service connection for PTSD and assigned a 50 percent rating, effective March 13, 2000, the date the claim was received, in accordance with 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400. The Veteran did not appeal the Board's June 2009 decision that denied an effective date prior to March 13, 2000 for the grant of service connection for PTSD to the Court. The Board also notes that he has not filed a motion to the Board alleging clear and unmistakable error in that determination. Hence, that decision is final. See 38 C.F.R. § 20.1100 (2010). In a June 2004 rating decision, the RO granted a 100 percent schedular rating for the Veteran's PTSD/residuals of brain injury with cognitive damage, effective June 10, 2003. As noted in the Introduction above, the Veteran did not perfect an appeal to the Board on the issues of entitlement to an initial rating in excess of 50 percent for PTSD/residuals of brain injury with cognitive damage from March 13, 2000 to April 16, 2001, and entitlement to an initial rating in excess of 70 percent for PTSD/residuals of brain injury with cognitive damage from April 17, 2001 to June 9, 2003. Hence, the February 2003 and June 2004 rating decisions that assigned disability ratings for the Veteran's PTSD are also final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.302 (2010) (A rating decision becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits). Prior to this grant of benefits and the award of the 100 percent schedular rating, the Veteran's service-connected disabilities included residuals of brain injury with cognitive damage, rated 70 percent disabling; PTSD, rated 50 percent disabling; neuritis of the left leg, rated 40 percent disabling; a seizure disorder, rated 40 percent disabling; peripheral nerve damage of the left upper extremity, rated 20 percent disabling; residuals of facial injury with disfiguring scars, rated 10 percent disabling; and residuals of bilateral fractures of the first ribs, rated noncompensable. His combined rating was 90 percent. Although the Veteran was in receipt of a 100 percent rating based on individual unemployability due to service-connected disabilities, the Veteran was not in receipt of a 100 percent schedular rating for any of his service-connected disabilities prior to June 10, 2003. Hence, as of June 10, 2003, and no earlier, the Veteran met the criteria for special monthly compensation at the housebound rate because he had a single disability rated 100 percent (i.e., PTSD/residuals of brain injury with cognitive damage), and additional service-connected disabilities, evaluated as 60 percent or more that were separate and distinct from the 100 percent service-connected disability and involved different anatomical segments or bodily systems (i.e., all of his other service-connected disabilities). See 38 C.F.R. § 3.350(i) (2010). Hence, June 10, 2003 is the date the Veteran's entitlement to an award of special monthly compensation based on housebound status arose and is the earliest date that the benefit may be awarded. Consequently, under the facts presented here, this is the earliest date that may be assigned. See 38 C.F.R. § 3.400 (2010). To the extent that the Veteran and his representative assert that the Veteran is entitled to an effective date for this benefit from the date of his initial claim for service connection for brain trauma shortly after his discharge from military service, the Board notes that the Court has clearly held that there is no basis in VA law for a freestanding earlier effective date claim in matters addressed in a final decision. Rather, when a decision is final, only a request for a revision premised on clear and unmistakable error could result in the assignment of earlier effective dates. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Again, here, the Board's decision that denied the claim for entitlement to an effective date prior to March 13, 2000, for the grant of service connection for PTSD is final because the Veteran did not file a timely appeal to the Court. Additionally, he has not filed a motion to the Board alleging clear and unmistakable error in that determination. The February 2003 and June 2004 rating decisions that essentially assigned staged ratings for the Veteran's PTSD/residuals of brain injury with cognitive damage are also final. Consequently, the Board concludes that the attempt to overcome finality of the Board's June 2009 decision, or the RO's February 2003 and June 2004 rating decisions in raising a freestanding claim for entitlement to an earlier effective date in conjunction with this claim must fail. ORDER An effective date prior to June 10, 2003, for the grant of special monthly compensation based on housebound status is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs