Citation Nr: 1320773 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 12-13 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date prior to June 2, 2010, for the grant of nonservice-connected pension benefits. 2. Entitlement to an effective date prior to June 2, 2010, for the grant of nonservice-connected special monthly pension based on the need for aid and attendance. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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. In October 1987 the Veteran withdrew his initial July 1987 claim for nonservice-connected pension benefits before it was adjudicated by the RO. 2. A May 1990 rating decision which thereafter denied the Veteran's June 1988 claim for nonservice-connected pension benefits became final when the claimant failed to file a Substantive Appeal following the issuance of the August 1990 statement of the case. 3. The Veteran next claim for nonservice-connected pension benefits as well his first claim for nonservice-connected special monthly pension based on the need for aid and attendance was received by the RO on June 3, 2010. 4. A Housebound and Aid and Attendance examination report was received by the RO on June 2, 2010, and there is no evidence that the Veteran was so incapacitated as to be unable to file his pension claims prior to June 2, 2010. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to June 2, 2010, for the award of nonservice-connected pension benefits have not been met. 38 C.F.R. § 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.156(c), 3.157, 3.400, 3.401 (2012). 2. The criteria for entitlement to an effective date prior to June 2, 2010, for the award of nonservice-connected special monthly pension based on the need for aid and attendance have not been met. 38 C.F.R. § 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.156(c), 3.157, 3.400, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence she is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. 38 U.S.C. § 5103(a). The Veteran is challenging the effective dates following the grant of nonservice-connected pension benefits and nonservice-connected special monthly pension based on the need for aid and attendance. In Dingess, supra, the Court also held that in cases where the benefit sought on appeal has been granted and an initial effective date assigned, the claims have been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id, at 490-91; Also see Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, regardless of whether the notice that the Veteran was provided before these claims were granted were legally sufficient VA's duty to notify in this case has been satisfied. Furthermore, the Board finds that if VA had a duty to provide adequate 38 U.S.C.A. § 5103(a) notice and failed to do so, that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the rating decision and the statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the record shows that VA obtained and associated with the claims file all identified in-service and post-service records including the Veteran's service treatment records, VA treatment records, and private treatment records. The record shows that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits since 1981. However, the record does not show that the RO ever requested these records. Nonetheless, the Board finds that a remand to request these records is not required. The Board has reached this conclusion because, as will be explained in more detail below, the record shows that the RO denied the Veteran's first claim for pension in a final May 1990 rating decision. Therefore, the Board finds that that these 1981 SSA records, which pre-dates the final 1990 rating decision, can have no relevance to the question of whether the Veteran met the criteria for earlier effective dates for the grant of his pension benefits. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Earlier Effective Date Claims The Veteran seeks an effective date prior to June 2, 2010, for the grant of nonservice-connected pension benefits and for the grant of nonservice-connected special monthly pension based on the need for aid and attendance. The Veteran and his representative appears to argue that the claimant should be awarded effective dates in 2005 because this is when the appellant first filed these claims and/or from the earliest date it is factually ascertainable that he met the criteria for a pension with aid and attendance. Pension is payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct. 38 U.S.C.A. § 1521(a) (West 2002); 38 C.F.R. § 3.3(a)(3) (2012). An increased rate of pension is provided to a veteran in need of regular aid and attendance. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. § 3.351 (2012). A person shall be considered to be in need of regular aid and attendance if such person (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; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1502(b) (West 2002); 38 C.F.R. § 3.351(b) (2012). In determining the need for aid and attendance, the following will be accorded consideration: 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; inability of 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 claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a) (2012). Generally, the assignment of effective dates of VA awards is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for pension "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date for pension claims received on or after October 1, 1984, is the date of receipt of the application therefore. 38 U.S.C.A. § 5110(b)(3)(A) (West 2002); 38 C.F.R. § 3.400(b)(1) (2012). If, however, within one year from the date on which the veteran became permanently and totally disabled, he or she files a claim for a retroactive award and establishes that disability prevented application for pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled, the effective date of an award of pension may be effective the date of receipt of the application or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. 38 U.S.C.A. § 5110(b)(3)(A),(B) (West 2002); 38 C.F.R. § 3.400(b)(1)(ii)(B) (2012). Awards of special monthly pension based on the need for aid and attendance are effective the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.401(a)(1) (2012). If an award of pension 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 pension 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. Id. Rating decisions become final when not appealed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award is date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2012). Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a) (2012). A claim is defined as "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) (2012). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2012). With the above laws and regulations in mind, the Board notes that the Veteran separated from military service in August 1973. The record also shows that the first time that he filed a claim for nonservice-connected pension benefits is in July 1987. However, the record also shows that he withdrew this claim in October 1987 before the RO had adjudicated it. See 38 C.F.R. § 20.204(b) (2012). Subsequently, the record shows that in June 1988 the Veteran filed a claim for nonservice-connected pension benefits. In a May 1990 rating decision, the RO denied this claim. While in August 1990 the Veteran filed a notice of disagreement to this rating decision, the Board nonetheless finds that it became final when the claimant failed to file a Substantive Appeal following the issuance of the August 1990 statement of the case. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104(a) (2012). Accordingly, the Board finds that the effective date for the grant the Veteran's nonservice-connected pension benefits can be no earlier than the date of receipt of his post-May 1990 claim. See 38 C.F.R. § 3.400(q)(1)(ii). As to the nonservice-connected special monthly pension based on the need for aid and attendance, the Board finds that it can be no earlier than the date that the RO grants nonservice-connected pension benefits. See 38 C.F.R. §§ 3.400, 3.401. Following the last final rating decision in May 1990, the record shows that on June 2, 2010, the RO received the Veteran's Housebound and Aid and Attendance examination report. This report showed that the Veteran's disabilities prevented him from engaging in any type of employment and he met the criteria for aid and attendance. On June 3, 2010, the RO received the Veteran's claim for nonservice-connected pension benefits as well his first claim for nonservice-connected special monthly pension based on the need for aid and attendance. While the Veteran claimed in statements to the RO that he had filed earlier claims for nonservice-connected pension benefits starting in 2005, no such claims are found in the claims file. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.155(a). Therefore, after considering the Veteran and his representative's contentions, the Board finds that the effective date for the award of nonservice-connected pension benefits and the award of nonservice-connected special monthly pension based on the need for aid and attendance can be no earlier than June 2, 2010, as this is the date VA received his new claim for nonservice-connected pension benefits following the prior final denial in May 1990 and this is not only the first time that it received his claim for nonservice-connected special monthly pension based on the need for aid and attendance but the effective date the RO assigned the grant of his nonservice-connected pension benefits. The Board notes that although the exact date on which the Veteran became totally and permanently disabled as well as when he met the criteria for aid and attendance is unclear, there is no indication from any of the medical records found in the Veteran's voluminous claims file that his disabilities were so incapacitating that he was prevented from filing these claims earlier than June 2, 2010. 38 C.F.R. § 3.400(b)(1)(ii)(B). With regard to any contentions under 38 C.F.R. § 3.400(o)(2) that the effective date should be the earliest date it is factually ascertainable that an increase in disability had occurred within one year prior to the claims, the Board finds that this rule pertains to claims for increased disability compensation and not to claims for pension. In summary, the record shows that the Veteran separated from active duty in August 1973. In a May 1990 rating decision, the RO denied his claim for nonservice-connected pension benefits and that rating decision became final when the claimant failed to perfect his appeal. On June 2, 2010, the RO received the Veteran's Housebound and Aid and Attendance examination report that showed that his disabilities prevented him from engaging in any type of employment and he met the criteria for aid and attendance. On June 3, 2010, the RO received the Veteran's new claim for nonservice-connected pension benefits as well his first claim for nonservice-connected special monthly pension based on the need for aid and attendance. The record does not show that his disabilities were so incapacitating that he was prevented from filing these claims earlier than June 2, 2010. Likewise, the record does not show that he filed an earlier claim for nonservice-connected pension benefits and nonservice-connected special monthly pension based on the need for aid and attendance. The February 2011 rating decision granted nonservice-connected pension benefits and nonservice-connected special monthly pension based on the need for aid and attendance effective June 2, 2010. Given this record, the Board finds that claims for earlier effective dates for the nonservice-connected pension benefits and the nonservice-connected special monthly pension based on the need for aid and attendance must be denied because no earlier date can be assigned. ORDER Entitlement to an effective date prior to June 2, 2010, for the grant of nonservice-connected pension benefits is denied. Entitlement to an effective date prior to June 2, 2010, for the grant of nonservice-connected special monthly pension based on the need for aid and attendance is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs