Citation Nr: 1318890 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-42 009A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than June 7, 2002 for the award of special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In his July 2007 claim for entitlement to an effective date earlier than June 7, 2002 for the award of SMC based on the need for aid and attendance, the Veteran asserted that there was clear and unmistakable error (CUE) in the May 2007 Board decision that granted SMC. Because the May 2007 Board decision did not address the issue of an earlier effective date for SMC, and there are no previous Board decisions with respect to the effective date assigned, the Board cannot address a motion for CUE. To the extent that the CUE claim is related to the RO's rating decision dated in June 2007, that decision is currently on appeal and is addressed in this decision. Therefore, the decision is not final, and there is no current basis to file a CUE claim which can only be filed to revise a decision that has become final. FINDING OF FACT The earliest indication of an intent to file a claim for entitlement to SMC based on the need for aid and attendance was communicated on October 3, 1989. CONCLUSION OF LAW The criteria for an effective date of October 3, 1989, but no earlier, for SMC based on the need for aid and attendance have been met. 38 U.S.C.A. §§ 1114, 5107(b), 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.350, 3.351(c)(3), 3.352(a), 3.401(a), 3.1000 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2012). The award of SMC on the basis of the need for aid and attendance represented substantiation of the Veteran's claim for SMC, and thus the filing of a notice of disagreement with the effective date of SMC did not trigger additional 38 U.S.C.A. § 5103(a) notice requirements. Therefore, Therefore, the Board finds that VA had no duty to provide the Veteran with 38 U.S.C.A. § 5103(a) notice as to these claims, and any defect as to notice is not prejudicial. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has also satisfied the duty to assist the Veteran in this case. The record includes service treatment records, VA examination reports, VA treatment records, and identified private treatment records. The record contains numerous statements by the Veteran and his family members and testimony of the Veteran and his cousin at an October 1989 hearing with a Decision Review Officer. The Veteran also underwent VA examination in October 1989 in connection with his claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record shows that the October 1989 VA examiner performed a neuropsychiatric evaluation of the Veteran, provided clinical findings with respect to the Veteran's level of impairment and need for aid and assistance, and considered the lay testimony provided by the Veteran and his cousin. As such, the Board finds the October 1989 VA examination sufficient and adequate for purposes of determining entitlement to an effective date earlier than June 7, 2002 for SMC on the basis of the need for aid and attendance. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Analysis Under VA laws and regulations, the award of compensation payable to a Veteran for SMC based on the need for aid and attendance and housebound benefits will be effective the date of receipt of the claim or the date entitlement arose, whichever is later (except as provided in 38 C.F.R. § 3.400(o)(2)). 38 C.F.R. § 3.401(a). The Veteran and his representative contend that the Veteran is entitled to an earlier effective date for the award of SMC because the Veteran has required aid and assistance since the effective date of August 12, 1976 for the grant of service connection for schizophrenia, paranoid type. Specifically, the Veteran's representative argues the Veteran has required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The Veteran's representative also asserts that the Veteran was bedridden under doctor's orders and not because of his own predilection to be in bed or want to be in bed. Generally, 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 VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A claim is 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). In addition, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris (i.e. not competent) may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The effective date of an award of benefits based on an original claim, a claim after final allowance, or a claim for an increase is either (1) the date of receipt of the claim or (2) the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As reflected in the June 2007 rating decision in which the RO granted SMC based on the need for aid and attendance, the RO considered the Veteran's claim for the benefit to be a written statement received on June 7, 2002 that requested an evaluation for SMC based on the need for aid and attendance. Because the RO found the Veteran was entitled to SMC based on the need for aid and attendance at the time the claim was received, the RO concluded that the proper effective date for the grant of SMC based on the need for aid and attendance was June 7, 2002. With respect to the specific requirements for an award of SMC, a veteran who, as the result of a service-connected disability, has suffered the anatomical loss or loss of use of both feet, or is permanently bedridden, or so helpless as to be in need of regular aid and attendance, shall receive SMC under the provisions of 38 U.S.C. § 1114(l). See 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of 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 (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 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 hazards or dangers incident to his or her daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 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 claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. §§ 3.351(c)(3), 3.352(a) (2012). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). Here, the Board finds an effective date of October 3, 1989, but no earlier, for the award of SMC based on the need for aid and attendance is warranted. First, the Board finds that when considered together, the lay testimony provided at the October 3, 1989 hearing and the clinical findings of the October 1989 VA examination indicate an intent to apply for SMC based on the need for aid and attendance, and therefore, constitute an informal claim for benefits. Specifically, the Board notes the Veteran's cousin testified that the Veteran's marriage was one of convenience because he needed someone with him all of the time. The Veteran's cousin asserted that someone should be with the Veteran at his home, and because he and his aunt were unable to be with the Veteran all of the time, the Veteran's wife was there as a convenient arrangement. The Veteran's cousin also claimed that he was afraid the Veteran might hurt himself. He stated that they had a dog in the backyard which had pacified the Veteran for awhile but that sometimes the Veteran heard voices and thought someone was running around the house. In addition, the Board notes the clinical findings of the October 1989 VA examiner. After performing a neuropsychiatric evaluation of the Veteran and speaking with the Veteran's cousin, the VA examiner found that the Veteran apparently managed with the supervision of his wife of two years and the relative who brought him to the examination. The VA examiner commented that the Veteran's associative processes were extremely limited and that he was undoubtedly delusional and hallucinatory most of the time. In light of this evidence, the Board finds that an effective date of October 3, 1989 for the award of SMC based on the need for aid and attendance is warranted, as the testimony provided by the Veteran's cousin, in conjunction with the findings of the October 1989 VA examiner, constitute an informal claim for benefits. However, an effective date earlier than October 3, 1989 is not warranted based on the evidence of record. The Board acknowledges the Veteran's specific statements that medical examinations showed he required aid and attendance since 1981. After reviewing the record, however, the Board concludes that the evidence does not demonstrate any documents submitted prior to October 3, 1989 that indicate an intent to claim entitlement to SMC based on the need for aid and attendance. The record does not reflect that the Veteran, his representative, or his family members cited an inability of the Veteran to dress himself or to keep himself ordinarily clean and presentable; the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of his disability could not be done without aid; an inability of the Veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; an inability to attend to the wants of nature; or incapacity, physical or mental, which required care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. The Board notes that under 38 C.F.R. § 3.157 (2012), a report of examination or hospitalization will be accepted as an informal claim for benefits. Here, although the Veteran was hospitalized several times prior to October 3, 1989, the reports do not show that the Veteran was so helpless as to be in need of regular aid and attendance. The Board also acknowledges the representative's statements that the Veteran was bedridden. However, the medical evidence does not demonstrate that the Veteran's service-connected disability required that he remain in bed. Finally, section 1114(s) states that a veteran is entitled to SMC when the veteran has a service-connected disability rated as total and a separate disability or disabilities rated at 60 percent or higher. In this respect, the United States Court of Appeals for Veterans Claims has held that the grant of entitlement to a total disability rating based on individual unemployability (TDIU) may satisfy the "rated as total" element of section 1114(s). See Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim and remanding to determine whether the Veteran's PTSD, rated at 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Here, the Veteran's service-connected schizophrenia, paranoid type, is already rated at 100 percent disabling effective August 13, 1976, and therefore, the issue of a TDIU to support a grant of SMC prior to October 3, 1989 is moot. Furthermore, the Veteran is not separately rated at 60 percent for a separate disability at any time. Accordingly, a remand is not warranted for a determination as to the issue of entitlement to a TDIU, and an effective date earlier than October 3, 1989 for SMC is not warranted. In conclusion, the earliest communication indicating an intent to apply for SMC based on the need for aid and attendance is dated October 3, 1989. Therefore, resolving the benefit of the doubt in the Veteran's favor, the Board finds that an effective date of October 3, 1989, but no earlier, for the award of SMC based on the need for aid and attendance is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an effective date of October 3, 1989, but no earlier, for SMC based on the need for aid and attendance is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs