Citation Nr: 1320953 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 08-29 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an earlier effective date than July 26, 2008, for a grant of special monthly pension (SMP) based on the need for regular aid and attendance (A&A). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to December 1975. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to SMP based on the need for A&A. In September 2009, the Veteran withdrew his request before a hearing before Veterans Law Judge. The case was remanded by the Board in January 2011 for additional development. Notwithstanding the above action by the Board, a February 2009 rating decision, contained in the Virtual VA file (VA's electronic data storage system) but not physically of record at the time of the January 2011 Board remand, granted entitlement to SMP based on the need for A&A effective from July 26, 2008. As the effective date for this grant was not assigned from the date of receipt of the claim for SMP based on the need for A&A, this award does not represent a total grant of benefits sought on appeal. Thus, there remains for consideration by the Board the issue of whether an effective dater earlier than July 26, 2008, may be granted for the award of SMP based on the need for A&A. AB v. Brown, 6 Vet. App. 35 (1993). The matter of entitlement to an earlier effective date for the grant of SMP based on the need for A&A was addressed by the RO in an April 2012 supplemental statement of the case, and the Veteran's representative submitted argument in disagreement with this decision in May 2013; as such (and given the favorable resolution of the issue herein), the Board finds that the issue of entitlement to an earlier effective date for the grant of SMP based on the need for A&A may be adjudicated by the Board without resulting in any prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). FINDINGS OF FACT 1. A claim for SMP based on the need for A&A was received on April 11, 2007. 2. The positive and negative evidence as to whether it was factually ascertainable as of April 11, 2007, that the criteria for A&A were met is in relative balance. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to SMP based on the need for regular A&A of another person are met from April 11, 2007. 38 U.S.C.A. §§ 1502, 1503, 1521, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Given the favorable resolution herein, additional discussion of those procedures is unnecessary. II. Legal Criteria/Analysis When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Under the applicable criteria, increased pension is payable to an otherwise eligible Veteran (as the Veteran is in the instant case) by reason of the need for A&A or by reason of being housebound. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.351(a)(1). The need for A&A means helplessness or being so nearly helpless as to require the regular A&A of another person. 38 C.F.R. § 3.351(b). To establish entitlement to special monthly pension based on the need for regular aid and attendance, the Veteran must be a patient in a nursing home on account of mental or physical incapacity; or be blind or so nearly blind as to have corrected visual acuity in both eyes of 5/200 or less or concentric contraction of the visual field to 5 degrees or less; or have a factual need for regular aid and attendance of another person under 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1502, 1521; 38 C.F.R. § 3.351. Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness;(4) 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 the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the appellant remain in bed. The fact that a 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). It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the appellant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the appellant is so helpless as to need regular A&A, not that there be a constant need. Determinations that a Veteran is so helpless as to be in need of regular A&A will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. It is mandatory for the VA to consider the enumerated factors under 38 C.F.R. § 3.352(a); that eligibility required at least one of the enumerated factors to be present; and that, because the regulation provides that the "particular personal function" which the Veteran is unable to perform should be considered in connection with his condition as a whole, the "particular personal function" must be one of the enumerated factors. Turco v. Brown, 9 Vet. App. 222 (1996). If a Veteran does not qualify for increased pension based on a need for A&A, increased pension may be paid if, in addition to having a single permanent disability rated as 100 percent under the rating schedule, the Veteran has a separate disability or disabilities independently ratable at 60 percent or more, or if the Veteran is permanently housebound by reason of disability (meaning substantially confined to his/her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area). 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. § 3.351 (emphasis added). In the instant case, increased pension under this provision, on the basis of the disability rendering the Veteran housebound, was previously granted effective from December 5, 2003, by way of a July 2004 rating decision. (With the grant of SMP on the basis of A&A effective from July 26, 2008, entitlement to SMP on the basis of being housebound ended effective from that date). Summarizing the relevant facts with the above criteria in mind, the Veteran's disabilities for pension purposes include a traumatic brain injury with multiple facial fractures, rated 80 percent disabling; status post lumbar laminectomy and discectomy, rated 60 percent disabling; a neurogenic bladder with benign prostatic hypertrophy, rated 60 percent disabling; and major depressive disorder in partial remission, rated 50 percent disabling. He also has several other disabilities rated for pension purposes. The Veteran's claim for SMP based on the need for A&A was received on April 11, 2007 and, as indicated, this benefit was granted effective from July 26, 2008, by a February 2009 rating decision. The basis for this effective date was that it was determined that the Veteran became so disabled as to require the assistance of another with daily living due to a close skull fracture and other injuries sustained in an All Terrain Vehicle (ATV) accident on that date. Under 38 C.F.R. § 3.352(a), the basic criteria for A&A include (1) the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; and (4) 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 the hazards or dangers incident to his daily environment. However, this regulation emphasizes that it is not required that all of these enumerated disabling conditions be found to exist for a positive determination, and that is only necessary that the evidence establishes that the appellant is so helpless as to need regular A&A. While the Board recognizes based on a review of clinical records contained in the Virtual File following the July 2008 ATV accident that the injuries sustained therein represented further disability than had existed prior to that time, and that there is otherwise some clinical evidence detailing the ability of the Veteran to function prior to this accident that weighs against the claim, the overall weight of the negative evidence is in relative balance with the positive evidence in favor of the claim. This positive evidence includes the fact, as referenced by the Veteran's representative and noted in the reports from a November 2007 VA examination, that the Veteran has been so disabled as to have been afforded home based VA primary care since March 2006. Additional positive evidence is a determination by the examiner who conducted a June 2004 VA examination that the Veteran was "severely debilitated" and would need the assistance of another person to leave his house in the case of a fire. Moreover, given the long standing severity of the Veteran's disability reflected in the clinical records, such as a June 7, 2004, VA clinical report noting problems with incontinence and the fact that the Veteran had been self catheterizing since 1997, considering the Veteran's "condition as a whole," there is sufficient positive evidence to reasonably conclude that the criteria for entitlement to A&A were met as of April 11, 2007. Turco, supra. Unless the preponderance of the evidence is against the Veteran's claim, it cannot be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 49. As set forth above, the Board has determined from its review of the clinical records that it cannot be said that the preponderance of the evidence is against a conclusion that the Veteran was so helpless as to need regular A&A at the time he filed his application for this benefit on April 11, 2007. As such, and without finding error in the assignment of the effective date by the RO, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that entitlement to an effective date for April 11, 2007, for SMP based on A&A may be granted. Id. ORDER Entitlement to an earlier effective date for SMP based on A&A from April 11, 2007, is granted, subject to the pertinent regulatory criteria relating to the payment of monetary awards. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs