Citation Nr: 1310312 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-48 635 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to an effective date earlier than May 13, 2009, for the award of special monthly compensation (SMC) based on the need for the regular aid and attendance (A&A) of another person. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to January 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2010 rating decision in which the RO granted SMC based on the need for regular A&A, effective May 13, 2009. In April 2010, the appellant filed a notice of disagreement (NOD) with the assigned effective date. A statement of the case (SOC) was issued in November 2010, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2010. In June 2012, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In February 2013, a Deputy Vice Chairman of the Board granted a motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). Additionally, additional evidence has been associated with the claims file since the most recent supplemental SOC issued in April 2012. Nevertheless, waiver of initial RO consideration of the evidence is not necessary as the evidence is not pertinent to the issue on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. In a November 5, 2007 rating decision, the RO, inter alia, denied SMC based on the need for regular A&A; the Veteran did not file a NOD to this decision and new and material evidence was not received within one year. 3. On May 20, 2009, the RO received the current claim for SMC based on the need for regular A&A as well as a May 13, 2009 opinion from the Veteran's VA doctor. 4. In the March 2010 rating decision, the RO granted SMC based on the need for regular A&A, and assigned an effective date of May 13, 2009 (the date of the medical opinion). 5. The record contains no statement or communication from the Veteran or the appellant, prior to May 13, 2009, that constitutes a pending claim for SMC based on the need for regular A&A. CONCLUSIONS OF LAW 1. The November 5, 2007 rating decision, in which the RO denied SMC based on the need for regular A&A is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 3.105, 3.156, 20.302, 20.1103 (2012). 2. The claim for an effective date earlier than May 13, 2009, for the award of SMC based on the need for regular A&A, is without legal merit. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In the present appeal, the November 2010 SOC included citation to the provisions of 38 C.F.R. § 3.400 and discussion of the legal authority governing effective dates for awards of SMC. The November 2010 SOC explained the reasons for the denial of the Veteran's request for an earlier effective date in this case. Moreover, the Veteran has been afforded the opportunity to present evidence and argument with respect to the claim herein decided, to include during the June 2012 hearing. Moreover, in June 2009, the RO sent notice to the Veteran providing the information and evidence needed to substantiate a claim for SMC as well as for establishing an effective date. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant. As will be explained below, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132. II. Analysis Generally, the effective date for an award of SMC is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §§ 3.400, 3.401 (2012). However, if an award of compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim based on an application for a retroactive award, any additional compensation payable by reason of need for aid and attendance 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. § 3.401(a)(1). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The basic facts in this case are not in dispute. In February 2005, the Veteran filed a claim for SMC based on the need for A&A due to his service-connected disabilities, which were low back disability, evaluated as 40 percent disabling; peripheral neuropathy of the right hand, evaluated as 30 percent disability; peripheral neuropathy of the left hand, evaluated as 20 percent disabling; peripheral neuropathy of the left lower extremity, evaluated as 20 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 20 percent disabling; diabetes mellitus, type II, evaluated as 20 percent disabling; colitis, evaluated as noncompensable; and erectile dysfunction, also evaluated as noncompensable. The Veteran had a combined rating of 90 percent, as well as TDIU, effective January 28, 2004. In a November 2007 rating decision, the RO, inter alia, denied SMC based on the need for regular A&A. The RO determined that the Veteran was not in the need of aid and attendance primarily due to his service-connected disabilities. Rather, his nonservice-connected disabilities were the primary reason for his need of care. Moreover, at that time, the Veteran did not meet the schedular criteria for SMC for housebound benefits as he did not have a single service-connected disability rated at 100 percent disabling. Moreover, although an October 2007 VA examination indicated that the Veteran did require the aid and attendance of another individual, the examiner appears to also base the opinion on the Veteran's nonservice-connected disabilities as well. Importantly, in October 2007, the Director of Compensation and Pension Service determined that entitlement to extra-schedular A&A or housebound benefits was not in order because it was primarily required for the Veteran's nonservice-connected disabilities. In a letter dated November 6, 2007, the RO informed the Veteran of the denial of his claim and of his appellate rights. Nevertheless, the Veteran did not initiate an appeal to the November 2007 rating decision. In this regard, the Board has carefully reviewed the record, but finds no indication of record, nor does the Veteran contend, that either he or any representative submitted any written statement within the appellate period which could be interpreted as a valid notice of disagreement with the RO's November 2007 decision. Nevertheless, applicable regulations provide that if new and material evidence was received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). In the instant case, there was no evidence submitted within one year of the November 2007 rating decision demonstrating that the Veteran was in need of aid and attendance due to his service-connected disabilities or that he met the schedular criteria for housebound benefits. Private treatment records submitted within one year primarily addressed the Veteran's nonservice-connected cancer or dated back many years prior. VA treatment records the following year, while at times reference treatment for the Veteran's service-connected disabilities, do not give any indication that these disabilities necessitated the need for aid and attendance or that the Veteran was housebound. For instance, a March 2009 record observed that the Veteran had got new braces, but reported that he was keeping active and doing well overall physically and mentally. In sum, while the evidence is considered new, it is not material as it does not address the Veteran's need for aid and attendance due to his service-connected disabilities. As such, given the lack of new and material evidence within one year of the November 2007 rating decision, the provisions of 38 C.F.R. § 3.156(b) are not applicable. Accordingly, unless an exception to finality applies, which has not been alleged in this case, that decision became final (and, hence, provides no basis for assignment of an earlier effective date for any subsequently granted benefit). See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The Veteran filed the current claim for SMC based on the need for REGULAR A&A on May 20, 2009, which included a May 13, 2009 opinion from his VA medical doctor. The doctor opined that the Veteran's service-connected conditions along with his current problems from myelodysplastic syndrome, required the need of aid and attendance. The Veteran was afforded a VA examination in September 2009. The examiner determined that the Veteran continued to require aid and attendance primarily due to his acute back pain. In March 2010, the Director of Compensation and Pension determined that extra-schedular evaluation for A&A was warranted as the Veteran's service-connected back disability required regular A&A due to his inability to dress, bathe, toilet and maintain personal hygiene. Moreover, the Veteran would not be able to care and protect himself in a hazardous environment due to gait instability and peripheral neuropathy. In the March 2010 rating decision, the RO granted SMC based on the need for regular A&A, effective May 13, 2009 (the date of the medical opinion establishing the need for regular A&A). While the Veteran asserts entitlement to an earlier effective, considering the record in light of the governing legal authority, the Board finds that no earlier effective date is assignable. In his statements of record and Board hearing testimony, the Veteran has asserted that the effective date for his SMC should be in 2002 when he was first treated by VA. He also pointed out that he was awarded Special Monthly Pension (SMP) in 2002. However, given the finality of the November 2007 rating decision, any prior claim for benefits was finally resolved, and, thus, cannot serve as the basis for the award of an earlier effective date. Moreover, the requirements for SMP differs from SMC as the basis for SMP is the need for regular A&A due to nonservice-connected disabilities; whereas for SMC, the Veteran must require the need for regular A&A based solely on service-connected disabilities. The Board also finds that there is no document associated with the claims file that can be construed as a pending claim for SMC based on the need for A&A at any point after the final November 2007 denial but prior to the May 13, 2009 claim and that no earlier effective date is assignable for the award of SMC based on the need for regular A&A. The Board has considered the fact that under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, the Court has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where entitlement to the benefit has not been established. Thus, records of VA treatment cannot constitute a claim for SMC based on the need for A&A. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In addition, there is no correspondence from the Veteran, dated prior to May 13, 2009, that could be interpreted as an informal claim for this benefit. The Board emphasizes that, while VA does have a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). To the extent practicable, VA does make every effort to identify and notify claimants of the potential entitlement to benefits. However, in this case, the claims file contains no communication from the Veteran at any time prior to May 13, 2009 that put VA on notice that potential entitlement to SMC based on the need for regular A&A had arisen. The Board has also considered whether 38 C.F.R. § 3.401(a)(1) provides an effective date earlier than the date of receipt of the claim based on a retroactive award of compensation. As noted, under 38 C.F.R. § 3.401(a), if there is a retroactive award of an award of compensation benefits, then any additional compensation payable for SMC based on the need for regular A&A would also be payable retroactively. That is not the case here. The regulation does not provide for an earlier effective date of additional SMC based on the need for regular A&A benefits where compensation benefits have already been awarded. In this case, the Veteran did not receive any compensation benefits retroactive from his initial claims of service connection and, thus, the exception pursuant to 38 C.F.R. § 3.401(a)(1) is not applicable. The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date for the award of SMC based on the need for regular A&A, earlier than May 13, 2009, is assignable, the claim for an earlier effective date must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than May 13, 2009, for the award of SMC based on the need for regular A&A is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs