Citation Nr: 1308997 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-11 024 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to an effective date earlier than February 25, 2008, for the award of special monthly compensation based on the need for aid and attendance. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from September 1955 to June 1958, and had more than two years and eight months of prior unspecified service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision by the RO which, in part, denied entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A&A). By rating action in December 2008, the RO awarded SMC based on the need for A&A, and the Veteran subsequently perfected an appeal as to the effective date assigned. A hearing before the undersigned at the RO was held in February 2013. 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. A claim for entitlement to SMC based on the need for A&A was received by VA on April 28, 2006, which claim remained pending when A&A benefits were granted effective from February 25, 2008. 4. Resolving reasonable doubt in favor of the Veteran, he met the criteria for a grant of A&A on August 12, 2005, the date of a private hospital report showing the need for A&A due to his service-connected disability. CONCLUSION OF LAW An earlier effective date of August 12, 2005, for SMC based on the need for A&A is warranted. 38 U.S.C.A. §§ 5101(a), 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p)(r), 3.155, 3.156(b), 3.157, 3.350(b)(3), 3.351(b),(c), 3.400(o)(2) (2012); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, this appeal arose from the downstream issue of the effective date assigned following the award of SMC based on the need for A&A. Since the Veteran's claim had been for A&A, the notice he received was directed toward that issue. As that has been granted, no further notice under the above mentioned law and regulations is necessary. It is observed the Veteran was provided a statement of the case concerning the effective date issue, and this document included the criteria used to establish effective dates. The Veteran perfected his appeal thereafter. With respect to the duty to assist in this case, the Veteran's service treatment records (STRs) and all VA and private medical records have been obtained and associated with the claims file. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of the issue addressed in this decision. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In this decision, the Board grants an earlier effective date for A&A. As this represents a complete grant of the benefit sought on appeal, no further discussion of VA's duty to notify and assist is necessary. See Bernard v. Brown, 4 Vet. App. 384 (1993). Effective Dates - Applicable Law and Regulations The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). A claim for a SMC is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet. App. 449, 451-52 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999). The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). A veteran shall be considered to be in need of a regular A&A if he or she has the anatomical loss or loss of use of both feet, one hand and one foot, or is so helpless or blind or permanently bedridden as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). In determining whether a veteran is helpless or nearly so helpless as to require the regular A&A of another person, the following circumstances will be considered: Inability of the veteran 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of the veteran to feed himself 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 veteran from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable decision is permissible. Particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). However, it is logical to infer a threshold requirement that "at least one of the enumerated factors be present." Turco, 9 Vet. App. at 224. "Bedridden" will be that condition which, by virtue of its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient. 38 C.F.R. § 3.352(a). Factual Background & Analysis The representative argues that the Veteran met the criteria for SMC based on the need for A&A when he initially filed his claim in April 2006, and that the effective date for the award of A&A should be from the date of his claim. Before addressing the merits of the issue on appeal, the Board believes that a discussion of the history of the Veteran's claim would be helpful. The evidence of record showed that the Veteran was admitted to a private hospital in July 2005 with serosanguineous discharge from a bone flap associated with a previous craniotomy for his service-connected chronic brain syndrome with vascular disease (previously rated as arterio-venous malformation of the brain). The Veteran reported that he awoke to find blood on his pillow about five weeks earlier, and was having falls about once a month prior to admission. The Veteran underwent craniotomy for infected bone flap due to chronic osteomyelitis a few days after admission and was subsequently discharged home on August 12, 2005, with home health care for administering the vancomycin and for weekly vancomycin peaks and troughs to be drawn. The medical reports following his hospital discharge included very little information concerning his physical abilities or activities, though he was instructed not to engage in any heavy lifting or strenuous activities. Private treatment notes in August 2005 showed that the Veteran's gait was unsteady, that he had to wear a helmet at all times, and that he was told to use a walker (an earlier note, dated in March 2005, indicated that he was issued a walker and a wheelchair by VA). A September 2005 treatment note showed that he had a wobbly gait and had fallen a few days earlier. A statement from a private physician, dated and received in April 2006, indicated that the Veteran had been evaluated in March 2005. The physician opined that the Veteran required the aid and attendance of another person in the ordinary activities of daily living due, in part, to left sided hemiparesis and frequent falls. On VA peripheral neuropathy examination in May 2006, the examiner noted that the Veteran's gait was unsteady, that he dragged his left foot, and that he required assistance to ambulate distances of more than 15 feet. He also noted that the Veteran reported increased deterioration of gait imbalance. On VA psychiatric examination in May 2006, the examiner opined that the Veteran would most likely be unable to live independently without his wife's daily care. On VA A&A examination in May 2008, the examiner noted that the Veteran was unable to walk without the assistance of others and was essentially confined to a wheelchair. The Veteran had an unsteady gait and frequent falls without assistance, and that he had marked difficulty dressing and undressing, bathing, grooming, and tending to the wants of nature. The examiner indicated that Veteran was only able to feed himself and that he required the assistance of his wife to perform the other activities of daily living. At the hearing in February 2013, the Veteran's wife testified that because of his unsteady gait and frequent falls since his surgery in 2005, the Veteran had been essentially confined to a wheelchair, and that he could not walk around his house, even with the use of a walker. She testified that the Veteran was able get out of the wheelchair to get into bed or to sit on the toilet, but that he she has to wheel him up to the bed or toilet before he can exit the wheelchair. Because of his imbalance problems and decreased cognitive functioning, and the fact that even a relatively minor blow to his head could be fatal, she said that she had tend to all of his needs and could not leave him alone. As noted above, in order to meet the regulatory criteria for A&A, the evidence must demonstrate that the Veteran is so helpless as to need or require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). It is not required that all of the factors enumerated in 38 C.F.R. § 3.352(a) be found to exist. The particular personal function which the Veteran is unable to perform should be considered in connection with his condition as a whole. Moreover, the evidence must establish that the Veteran is so helpless as to need regular A&A, not that there is a constant need for A&A. 38 C.F.R. § 3.352(a); see VAOPGCPREC 21-94. In the instant case, the evidence of record showed that the Veteran has been in need of the assistance of others for most of the regular activities of daily living due to his service-connected chronic brain syndrome since his hospital discharge in August 2005. The overall clinical findings and observations made by the healthcare provider discussed above indicated that the Veteran has had significant problems performing most of the routine functions of everyday self-care since his surgery in 2005. His need to wear a helmet and his inability to ambulate without a wheelchair because of his unsteady gait, raises additional concerns as to his ability to protect himself from the hazards of his daily environment since his craniotomy in 2005. Furthermore, there is no competent evidence or opinion to the contrary. While the medical reports included very little specific information concerning his daily activities subsequent to his surgery, the nature of his disability, the reports of chronic imbalance problems and his inability to ambulate weigh heavily in favor of finding that the Veteran was in need of regular aid and attendance in performing the routine functions of daily living prior to February 25, 2008. Under these circumstances, the Board finds the evidence is, at the very least, in relative equipoise on the question of whether the Veteran was so helpless as to need regular A&A since his hospital discharge in August 2005. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. Accordingly, the Board finds that the effective date for the award of SMC based on the Veteran's need for A&A should be from August 12, 2005, the day of his hospital discharge. ORDER An effective date of August 12, 2005, for the award of SMC based on the need for A&A is granted, subject to VA laws and regulations concerning the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs