Citation Nr: 1310092 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 08-26 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date prior to February 5, 2007, for the grant of special monthly compensation (SMC) based on housebound criteria being met. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from June 1966 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, granting SMC based on household criteria being met, effective as of February 5, 2007. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2013. A written transcript of this hearing has been prepared and incorporated into the Veteran's electronic file. During the pendency of this claim, entitlement to specially adapted housing was granted. Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDINGS OF FACT 1. The Veteran has been service-connected for coronary artery disease, rated as 100 percent disabling, since December 10, 2002. 2. The Veteran did not have additional disability or disabilities totaling 60 percent or more prior to February 5, 2007. 3. The Veteran's service-connected disabilities were so disabling as of at least September 16, 2005 to leave him substantially confined to his dwelling and the immediate premises. 4. The Veteran's most recent claim for SMC based on housebound criteria being met was received by VA on July 26, 2006. CONCLUSION OF LAW The criteria for establishing entitlement to an effective date of July 26, 2006, for the grant of SMC benefits due to housebound criteria having been met have been satisfied. 38 U.S.C.A. §§ 1110, 1111, 1114(a), 1131, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.350(a), 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Analysis The record reflects that the Veteran originally filed a claim seeking SMC in September 2005. This claim was denied in a rating decision dated December 12, 2005. The Veteran did not appeal this decision and it became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Board notes that the Veteran submitted another claim seeking entitlement to SMC benefits that was received by VA on July 26, 2006 - less than one year after the date of the December 2005 rating decision. However, the Veteran failed to assert any disagreement with the previous rating decision of December 2005. As such, it was properly treated as a new claim for benefits rather than as a notice of disagreement to the previous rating decision. See 38 C.F.R. § 20.201 (a valid notice of disagreement must be in writing, and must express disagreement or dissatisfaction with a prior rating decision within one year from the date of being notified of that decision). Subsequently in an April 2007 rating decision, SMC based on housebound criteria being met was granted as of February 5, 2007. A timely notice of disagreement was received from the Veteran in July 2007, alleging that he was entitled to an effective date of April 25, 2006. He later asserted in an August 2007 statement that he was entitled to an effective date of 2005. The Veteran did not explain why he felt he was entitled to these effective dates. Nonetheless, his claim for an earlier effective date was denied in a July 2008 statement of the case. The Veteran appealed this decision to the Board in July 2008. Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or, (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). The record reflects that the Veteran's service-connected coronary artery disease has been rated as 100 percent disabling since December 2002. Upon receipt of the Veteran's claim for SMC in July 2006, the Veteran was also service-connected for renal insufficiency with hypertension (rated as 30 percent disabling), diabetes mellitus type 2 (rated as 20 percent disabling) and a seizure disorder (rated as 10 percent disabling). These three disabilities combine for a 50 percent disability evaluation. See 38 C.F.R. § 4.25. The Veteran was also service-connected for scarring of the left leg and diabetic retinopathy at this time, but both of these disabilities were rated as noncompensable (0 percent disabling). In the April 2007 rating decision, the Veteran was granted service connection for peripheral neuropathy of the left upper extremity, the right upper extremity, the left lower extremity and the right lower extremity. A 10 percent disability evaluation was assigned to each of these extremities, effective as of February 5, 2007, raising the Veteran's overall disability evaluation (without regard for his 100 percent disability evaluation for coronary artery disease) to 70 percent. The Veteran did not appeal the effective date assigned to these disabilities, and as such, the effective date of February 5, 2007, is now final. Therefore, the Veteran did not have a single disability rated as 100 percent disabling, and, separate disabilities rated as 60 percent disabling or more, until February 5, 2007. However, the evidence of record demonstrates that the Veteran was substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises as of at least September 16, 2005. See 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). According to a statement from a physician with the initials L.Q. dated September 16, 2005, the Veteran was unable to travel or leave his home without assistance. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a 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 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). A "claim" is 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. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The record reflects that the Veteran submitted a claim for SMC benefits on July 26, 2006, which is prior to his current effective date of February 5, 2007. Also, the evidence demonstrates that as of at least September 16, 2005, he was unable to leave his home without assistance. As such, an effective date of July 26, 2006, is warranted. The proper effective date is date of receipt of the claim, or, the date in which entitlement arose, whichever is later. 38 C.F.R. § 3.400. As discussed in detail above, the most recent claim seeking entitlement to SMC based on housebound criteria was received on July 26, 2006. As such, the evidence of record demonstrates that the Veteran was entitled to SMC based on housebound criteria being met, as of July 26, 2006. As a final matter, the Board notes that the Veteran's representative argued during the February 2013 hearing that the Veteran was entitled to an effective date back to the date of his original claim of September 2005. However, as already discussed, the evidence of record demonstrates that this claim was denied in a December 2005 rating decision. The Veteran provided VA with no evidence or statement expressing any disagreement with this decision, and as such, it is now final. As such, the earliest effective date available to the Veteran is July 26, 2006 - the date of his most recent claim seeking entitlement to benefits. Resolving all reasonable doubt in favor of the Veteran, an effective date of July 26, 2006, for the grant of SMC benefits based on housebound criteria being met is granted. See 38 U.S.C. § 5107(b). ORDER An effective date of July 26, 2006, for the grant of special monthly compensation (SMC) based on housebound criteria being met, is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs