Citation Nr: 1206562 Decision Date: 02/22/12 Archive Date: 03/01/12 DOCKET NO. 09-34 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to January 7, 2009 for the grant of a higher rate of dependency, indemnity and compensation (DIC) based on the need for aid and attendance. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active duty service from April 1943 to January 1946. He expired in September 2006. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA); which granted the appellant a higher rate of DIC based on her need for aid and attendance. The award was made effective January 7, 2009. In a February 2011 decision, the Board denied entitlement to an effective date prior to January 7, 2009 for the grant of a higher rate of DIC based upon the need for aid and attendance. The appellant appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2011 Order, the Court granted a November 2011 Joint Motion for Remand (Joint Motion) which vacated the Board's decision and remanded this appeal for further consideration in accordance with the Joint Motion. FINDINGS OF FACT 1. In a rating decision issued in November 2008, the RO granted the appellant DIC benefits, effective July [redacted], 2006, the date of the Veteran's death. 2. In January 2009, the RO received the appellant's statement in which she claimed entitlement to an increased rate of DIC based on her need for aid and attendance. 3. The January 2009 statement constituted new and material evidence with regard to the decisions reached in the November 2008 grant of DIC benefits. 4. The appellant has been in need of regular aid and attendance since October 1, 2006. CONCLUSION OF LAW An effective date of October 1, 2006 is warranted for the grant of a higher rate of DIC based on the need for aid and attendance. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.400, 3.402(c) (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to notify and assist 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, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist the appellant 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) (2011). The appeal for an earlier effective date for the grant of a higher rate of DIC based on the need for aid and attendance arises from the appellant's disagreement with the effective date assigned after the grant of aid and attendance based upon her DIC award. The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to 'downstream' questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c),(d). This 'duty to assist' contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, the appellant has submitted private medical records which reflect treatment for her medical issues and establish that aid and attendance was needed beginning with a fall in which she broke her hip. The medical records showing the initial treatment for her fractured hip are not in the claims file, and various dates for the fall have been reported. The Board has assigned an effective date of October 1, 2006, for the grant of aid and attendance. This is the earliest reported date for the fall, and the appellant has stated that her need for aid and attendance began no earlier than October 2006. The appellant is therefore not prejudiced by the absence of the treatment records. II. Earlier effective date for DIC at the aid and attendance rate DIC is paid to a surviving spouse where a Veteran's death is due to a service connected cause. 38 U.S.C.A. § 1310 (West 2002). Increased death compensation is payable when a surviving spouse is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1122(b); 3.351(b) (2011). Need for the aid and assistance of another is determined in accordance with 38 C.F.R. § 3.352 (2011). Determinations as to the need for aid and attendance must be based on actual requirements 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/herself or to keep himself/herself 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/herself through loss of coordination of 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/her 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/her 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) (2011). The law and regulations provide that the effective date of an 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 the receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.402 provide a specific rule governing the effective date of an award of aid and attendance or housebound benefits to a surviving spouse. Generally, an award of a higher rate of DIC based on the need for aid and attendance will be effective the date the claim for that benefit was received. The regulation provides two limited exceptions. First, when an award of DIC or pension based on an original or reopened claim is effective for a period prior to date of receipt of the claim, any additional DIC or pension payable to the surviving spouse by reason of need for aid and assistance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.402(c)(1). Further, for the purpose of granting aid and attendance benefits, the date of departure from hospital, institutional, or domiciliary care at VA expense may constitute the date of receipt of the claim. 38 C.F.R. § 3.402(c)(2). The undisputed evidence shows that the Veteran died on July [redacted], 2006; that the RO awarded DIC in an October 2008 rating decision issued in November 2008; and that the appellant initially communicated her need for aid and attendance to the RO in a statement received in January 2009. The Joint Motion was premised on the need for the Board to determine whether the January 2009 filing constituted a notice of disagreement with the November 2008 rating decision, was new and material evidence pertaining to the November 2008 rating decision, or constituted a new claim. It was noted that Federal Circuit had recently held that VA was required to determine whether evidence received in the appeal period after a decision constituted new and material evidence relating to a pending claim; or should be treated as a new claim. Bond v. Shinseki, 659 F.3d 1362 (2011). There are six elements for a valid NOD: it must (1) express disagreement with a specific determination of the agency of original jurisdiction; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO decision; (5) be filed by the claimant or the claimant's authorized representative; and (6) express a desire for Board review. 38 U.S.C.A. § 7105(b); Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002); 38 C.F.R. § 20.201 (2005). The appellant's January 2009 filing was not a notice of disagreement, because it did not express disagreement with a prior decision or express a desire for Board review. A remaining question is whether the January 2009 filing was new and material evidence pertaining to the November 2008 decision. To decide that question, it is necessary to determine whether the issue of entitlement to DIC at the aid and attendance rate was an element of the November 2008 decision. The court has held that claims for increased ratings involve the question of entitlement to special monthly compensation. Buie v. Shinseki, 24 Vet. App. 242 (2010); Akles v. Derwinski, 1 Vet. App. 118 (1991). The Court has not explicitly held that a claim for DIC encompasses entitlement to payment of a higher rate of DIC based on the need for aid and attendance. The reasoning employed by the Court in Akles would; however, seem to apply to the question of whether a DIC claim encompasses entitlement to higher rate of that benefit based on need for aid and attendance. The Akles Court held that special monthly compensation was encompassed in an increased rating claim because of VA's duties to assist claimants with the development of their claims and to inform claimants of all potential benefits. In addition, VA's General Counsel presumably would not have agreed to the Joint Motion in this case, unless he believed that entitlement to an increased rate of DIC based on aid and attendance was an element of the claim for basis entitlement. The Board finds; therefore that the November 2008 decision granting DIC encompassed the issue of entitlement to a higher rate of that benefit based on the need for aid and attendance. The January 2009 submission contained the initial report that the appellant was in need of aid and attendance. It thus pertained to elements of the claim, the absence of which, were a basis for the failure to previously award the aid and attendance benefit. As such the evidence was new and material. 38 C.F.R. § 3.159(a). The new and material evidence received within the appeal period after the November 2008 decision, is deemed to have been received in conjunction with the claim that was decided in that decision. That claim was received on October 30, 2006. Although all the evidence shows that the appellant required regular aid and attendance beginning with her fall and hip fracture, there is conflicting evidence as to when the fall occurred. In the January 2009 submission she reported that the fall occurred in October 2007 and that her need for aid and attendance began at that point, but she went on to state that she began to require "care provider services" in October 2006. A January 2008 treatment record reports that the appellant had lived by herself until her right hip fracture, but adds that the fracture had occurred in September 2007. Available records show that in February 2007, the appellant was being given preoperative treatment for hip surgery; and an August 2007 record shows that the appellant had a history of right hip fracture. These records, together with the appellant's reports of being in need of aid and attendance since October 2006, support a conclusion that the right hip fracture necessitating aid and attendance occurred in October 2006 rather than 2007. The November 2008 decision awarded DIC retroactive to the date of the Veteran's death on July [redacted], 2008. Under 38 C.F.R. § 3.402, the effective date would be the date entitlement arose, potentially as far back as July [redacted], 2008. Resolving reasonable doubt in the appellant's favor, the Board finds that the date entitlement arose was October 1, 2006. There is no evidence or contention that the appellant needed aid and attendance prior to that date. ORDER Entitlement to an effective date of October 1, 2006 for the grant of a higher rate of DIC based on the need for aid and attendance is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs