Citation Nr: 1304026 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 11-21 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to an effective date earlier than January 28, 2009, for the award of special monthly compensation (SMC) based on the need for aid and attendance ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty with the Philippine Commonwealth Army from December 1941 to August 1942 and from May 1945 to June 1946. The Veteran was also a prisoner of war (POW) in the Philippines from April 1942 to August 1942. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The May 2010 rating decision awarded SMC based on the need for aid and attendance effective from January 28, 2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's initial claim for SMC based on the need for aid and attendance was received by VA on January 4, 2004. The claim was denied in an unappealed March 2004 rating decision. 2. The Veteran filed another claim for SMC based on the need for aid and attendance on January 28, 2010. 3. Entitlement to SMC based on the need for aid and attendance was awarded in a May 2010 rating decision, effective January 28, 2009. The May 2010 rating decision also granted service connection for status-post cerebrovascular accident (CVA) and vascular dementia as secondary to CVA, effective January 28, 2009. CONCLUSION OF LAW The criteria for an effective date earlier than January 28, 2009, for the award of SMC based on the need for regular aid and attendance have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.351, 3.352, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to SMC based on the need for aid and attendance was awarded in the May 2010 rating decision on appeal effective January 28, 2009, the date the RO determined the Veteran first met the criteria for SMC. The Veteran contends that an earlier effective date for aid and attendance is warranted from January 2004, the date he first filed a claim for the benefit, or October 2004, the date VA amended a regulation that provided for service connection on a presumptive basis for stroke residuals for former POWs. The need for aid and attendance means helplessness or being so nearly helpless as to require aid and attendance of another person. A veteran will be considered to be in the need of regular aid and attendance if the veteran: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c) (2012). For purposes of determining its effective date, an award of aid and attendance is considered a claim for an increased rating. The effective date of an award for increased disability compensation is the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year thereof. Otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(1) and (2). If a claim is reviewed more than one year after the effective date of a liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. See 38 U.S.C.A. § 5110(g); 38 C.F.R. §§3.114, 3.400. The Veteran first filed a claim for SMC based on aid and attendance on January 27, 2004. The claim was denied in an unappealed and final March 2004 rating decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. In July 2004, the Veteran was provided a field examination to determine whether he required a legal custodian to handle his affairs with VA. After examining the Veteran at his home, the examiner determined that a custodian should be appointed and recommended referring the case for a new claim for SMC based on the need for aid and attendance. A letter was mailed to the Veteran in July 2004 informing him of VA's duties to notify and assist him in a claim for aid and attendance, but a claim was not adjudicated at that time. On January 28, 2010, the Veteran, through his legal custodian, filed a formal claim for SMC based on the need for aid and attendance and entitlement to service connection for residuals of a CVA. In a May 2010 rating decision, entitlement to SMC based on the need for aid and attendance was awarded effective January 28, 2009. Entitlement to service connection for status post CVA and vascular dementia was also granted. The RO noted that service connection was possible for these disabilities based on a revision of 38 C.F.R. § 3.309(c) that allowed service connection for residuals of a stroke on a presumptive basis for former POWs, which was effective October 7, 2004. See 69 Fed. Reg. 60,087 (codified at 38 C.F.R. § 3.309(c)). Both disabilities were initially rated as 100 percent disabling effective January 28, 2009, one year prior to the date of claim. The award of aid and attendance was based on the Veteran's service-connected vascular dementia. The Veteran argues that an earlier effective date is warranted for the award of aid and attendance as he met the criteria for the benefit as early as January 2004. In the alternative, he contends that the appropriate effective date for his increased compensation is October 7, 2004, the effective date of the regulatory change that made service connection for his residuals of a CVA and vascular dementia possible. With respect to the argument that aid and attendance is warranted from the date his first claim for the benefit was filed in January 2004, as noted above, this claim was finally adjudicated in the March 2004 rating decision. Therefore, it cannot serve as the basis for the current award of aid and attendance in the May 2010 rating decision. Additionally, service connection for CVA and vascular dementia, the disabilities that formed the basis for the grant of aid and attendance in the May 2010 rating decision, was not established until January 28, 2009. That effective date was established as one year prior to the January 28, 2010, date of claim based on a liberalizing change in the regulations that allowed service connection for residuals of a stroke on a presumptive basis for former POWs. The liberalizing change was effective October 7, 2004, so the RO established the effective date as one year prior to the date of receipt of the claim for SMC under 38 C.F.R. § 3.114(a)(3). The Board is sympathetic to the Veteran's claim and notes that he has experienced residuals of a stroke since September 2003, but the Board cannot grant an effective date for aid and attendance prior to the effective date of service connection for the disability that serves as the basis for the award. Thus, an effective date earlier than January 28, 2009, for the grant of SMC based on aid and attendance is not possible and the claim must be denied. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has initiated an appeal regarding the effective date assigned following an award of SMC based on the need for aid and attendance. The claim for the underlying benefit on appeal is already substantiated and the filing of a notice of disagreement as to the May 2010 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3). No additional discussion of the duty to notify is therefore required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a 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 a 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). VA has obtained records of treatment reported by the Veteran, including service treatment records and private medical records. For the reasons set forth above, the Board finds that VA has complied with the duties to notify and assist. ORDER Entitlement to an effective date earlier than January 28, 2009, for the award of SMC based on the need for aid and attendance is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs