Citation Nr: 1333399 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-30 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date for special monthly benefits for the need of aid and attendance earlier than January 4, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active duty service from July 1947 to January 1961. He died in February 1961. The appellant is his surviving spouse. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2010 rating decision by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA); which granted the appellant entitlement to aid and attendance allowance. The award was made effective January 4, 2010. In April 2012, January 2013, and July 2013, the Board remanded the claim for additional development. Please note 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. By way of an April 1961 rating decision, the Veteran's surviving spouse was in receipt of an award of dependency and indemnity compensation (DIC) that was effective February 2, 1961. 2. The claim for benefits based on the need for aid and attendance for the Veteran's surviving spouse was received by VA on January 4, 2010. A thorough review of the record does not reflect an unadjudicated formal or informal claim for such benefits was received prior to that date. 3. The evidence does not demonstrate that the Veteran's surviving spouse departed from hospital, institutional or domiciliary care at VA's expense prior to January 4, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than January 4, 2010, for the establishment of aid and attendance for the Veteran's surviving spouse are not met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.400, 3.402 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). I. Stegall Concerns In April 2012, January 2013, and July 2013, the Board remanded the appeal to the RO, via the Appeals Management Center (AMC), for further development. The Board instructed the RO to obtain the Appellant's treatment records pertaining to her reported heart surgery. In response to an inquiry from the AMC, the Appellant and her daughter submitted copies of VA form 21-4241 (Authorization and Consent to Release Information) for several treatment providers. After multiple attempts to obtain records from all of the indicated treatment providers, only a single treatment provider provided records. In a September 2013 letter, the AMC informed the Appellant of lack of response from the other treatment providers, and the Appellant was invited to obtain the records herself and submit them to the AMC. The Appellant did not respond, and later in September 2013, a Supplemental Statement of the Case was prepared. In light of the aforementioned actions, the Board finds that there has been substantial compliance with the requirements articulated in the Board's prior remands. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Veterans Claims Assistance Act of 2000 (VCAA) The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). However, in this case the appeal is from the Appellant's disagreement with the effective date assigned for aid and attendance allowance. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As such, no discussion of VA's duty to notify is necessary. The Board also notes that the Appellant has actively participated in the processing of her case, and the statements submitted in support of her claim have indicated familiarity with the requirements for the benefits sought on appeal. For example, in her statements she indicated that she is aware that the effective date is from the date of claim, but she maintains that her date of need for aid and attendance was prior to the effective date of January 4, 2010. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the Appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the Appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In any event, the Appellant has not demonstrated any prejudice with regard to the content or timing of any notice, or lack thereof. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied regarding this appeal. Various records were obtained and considered in conjunction with the underlying aid and attendance claim. Further, the Appellant had the opportunity to present evidence and argument in support of this claim. Nothing indicates that she has identified the existence of any additional relevant evidence that has not already been obtained or requested regarding the underlying aid and attendance claim. Moreover, the issue on appeal is not whether the Appellant was entitled to such benefits, but the effective date of thereof. The Board notes, as a general rule, adjudication of a claim for an earlier effective date is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain documents were either received by VA or promulgated to the claimant. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). III. Earlier Effective Date Claim Generally, the effective date of an 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 will be the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In particular, 38 C.F.R. § 3.402 provides a rule specifically governing the effective date of an award of aid and attendance or housebound benefits to a surviving spouse. This regulation directs that an award of a death pension based on the need for aid and attendance will be effective the date the claim for that benefit was received, unless one of two exceptions applies. First, when an award of DIC or pension based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional DIC or pension payable to the surviving spouse by reason of need for aid and assistance or housebound status 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. § 3.402(c)(1). Second, for the purpose of granting aid and attendance benefits, the date of departure from hospital, institutional, or domiciliary care at VA expense may constitute the date of receipt of the claim. 38 C.F.R. § 3.402(c)(2). The date of receipt shall be the date on which a claim, information or evidence was received at VA. 38 U.S.C.A. § 101(30); 38 C.F.R. § 3.1(r). VA means all organization units of the Department of Veterans Affairs. 38 C.F.R. § 1.9(b)(1). As noted above, in April 1961, the Veteran's surviving spouse awarded DIC, effective February 2, 1961. Following the April 1961 notification letter, the claims file does not contain any communication from the appellant that may be reasonably construed as a formal claim or informal claim for regular aid and attendance received by VA prior to January 4, 2010. See 38 C.F.R. §§ 3.151, 3.155. In that regard, prior submitted statements do not reflect the appellant's report of needing regular aid and attendance. Nothing in the record indicates the Veteran's surviving spouse submitted a claim for Aid and Attendance benefits until the Appellant submitted VA form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance). This form is date stamped as received by the RO on January 4, 2010. Significantly, neither the Appellant nor her accredited representative has ever asserted that a claim for Aid and Attendance was filed prior to January 4, 2010. As such, the Board must find that there was no unadjudicated claim by or on behalf of the Veteran's surviving spouse for Aid and Attendance benefits that was received by VA prior to January 4, 2010. Therefore, absent one of the two exceptions provided by regulation, the effective date for the award of Aid and Attendance is the date of claim-January 4, 2010. 38 C.F.R. § 3.402. The appellant has essentially asserted that one of the exceptions to 38 C.F.R. § 3.402 should apply. The first exception provides that when an award of DIC or pension based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional DIC or pension payable to the surviving spouse by reason of need for aid and assistance or housebound status 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. § 3.402(c)(1). As the Appellant was originally awarded DIC benefits in 1961, the instant case does not involve a claim for retroactive DIC benefits based on an original claim. As such, the first exception to 38 C.F.R. § 3.402 does not apply. The second exception provides that, for the purpose of granting aid and attendance benefits, the date of departure from hospital, institutional, or domiciliary care at VA expense may constitute the date of receipt of the claim. 38 C.F.R. § 3.402(c)(2). The appellant has asserted that she previously had heart surgery, and when she was discharged from the hospital on July 7, 2005, she required the aid and attendance of another person. Consequently, she claims that an effective date of July 7, 2005 should be awarded. As noted above in Section I of this decision, VA has attempted to obtain the Appellant's treatment records pertaining to her reported heart surgery. After multiple attempts to obtain records from all of the Appellant's indicated treatment providers, only a single treatment provider provided records. That single treatment provider was not the facility that performed the Appellant's heart surgery. The appellant was informed in September 2013 that the other treatment providers had not provided the requested records, and the appellant was invited to obtain the records and send them directly to VA. No response to the September 2013 letter has been received from the Appellant. The United States Court of Appeals for Veterans Claims has held that "[t]he duty to assist is not always a one-way street. If a[n Appellant] wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Appellant's reported evidence has not been submitted to substantiate her assertions. Regardless, the Board notes that even if the records pertaining to the Appellant's heart surgery had been submitted to VA, they pertain to surgery performed at a private treatment center-not a VA treatment center. As such, the record suggests that the Appellant's hospitalization for heart surgery was not at VA's expense. Significantly, the appellant has not claimed that her heart surgery at a private institution was at VA expense. Therefore, the second exception under 38 C.F.R. § 3.402(c)(2) does not apply. In view of the foregoing, the Board must find that there is no legal basis to award aid and attendance allowance to the Veteran's surviving spouse prior to January 4, 2010. Therefore, the benefit sought on appeal regarding this claim must be denied. ORDER Entitlement to an effective date for special monthly benefits for the need of aid and attendance earlier than January 4, 2010 is not warranted; the appeal is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs