Citation Nr: 1417474 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 11-33 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date earlier than November 10, 2004 for the grant of special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from August 1969 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted special monthly compensation based on aid and attendance effective November 10, 2004. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing in March 2013. A copy of the hearing transcript, as well as a portion of the Veteran's VA treatment records, has been associated with his Virtual VA file. Any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran was denied SMC for aid and attendance in July 1999, October 1999, March 2000, and July 2000 rating decisions. He filed timely notices of disagreement (NODs) in June 2000 and again in September 2000. He subsequently withdrew his notices of disagreement in October 2000. 2. The Veteran filed a claim for SMC for aid and attendance on August 1, 2002, and the competent and credible evidence shows that the requirements for that benefit were met as of that date. CONCLUSION OF LAW The criteria for an effective date of August 1, 2002, for the award of SMC based on the need of aid and attendance are met. 38 U.S.C.A. §§ 1114(l), 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.401(a)(1), 3.350(b), 3.352(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), sets forth VA's duties to notify and assist with development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). In this case, the Veteran appeals from the assigned effective date following a grant of SMC. Where a claim has been substantiated and an effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to this "downstream" element does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In addition, all measures have been undertaken to assist with development of this matter. Further VA development of the claim is not required, as the Veteran's contentions for an earlier effective date do not implicate additional medical evidence. The record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Finally, the Veteran testified at a Board hearing. The hearing was adequate as the VLJ who conducted the hearing explained the issue and elicited testimony to support the Veteran's contentions. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). II. Earlier Effective Date The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The corresponding VA regulation expresses this rule as "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). The law provides an exception to this general rule governing claims "for increase." 38 U.S.C.A. § 5110(a), (b)(2). If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). See also Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134- 135 (1992); VAOPGCPREC 12-98, 63 Fed. Reg. 56704 (1998). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: Inability of claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of claimant 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 daily environment. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in § 3.352(a) 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 condition as a whole. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. However, the finding must be based on the actual requirement of personal assistance from others. 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. That 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). VA regulations provide that the terms claim and application mean 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) (2013). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Once a formal claim for VA benefits has been filed, a subsequent informal request for increase will be accepted as a claim. 38 C.F.R. § 3.155(c) (2013). Generally, the informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). A treatment note may constitute an informal claim for increase. 38 C.F.R. § 3.157 (2013). The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement special monthly compensation (SMC) under 38 U.S.C.A § 1114. 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, pursuant to VA's duty to maximize benefits, for VA to determine whether the Veteran's posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). The Veteran was denied SMC for aid and attendance benefits in July 1999, October 1999, March 2000, and July 2000 RO rating decisions. He was provided notice of these decision of his appellate rights. See RO letters, dated August 2, 1999, October 7, 1999, May 8, 2000, and August 1, 2000. He filed timely notices of disagreement (NODs) in June 2000 and again in September 2000, which placed the claim in appellate status. He also submitted a timely notice of disagreement with other claims that were denied in the March 2000 and July 2000 rating decisions (and in a June 2000 rating decision), including the evaluations assigned for hypertension, hemorrhoids, a forehead scar, and plantar warts, and the effective date assigned for nonservice-connected pension. The Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. Thereafter, the Veteran appeared at an informal conference with a DRO at the RO on October 24, 2000. At that time, he submitted additional evidence in support of his claims, including VA treatment records dated through October 23, 2000. He also submitted a written statement dated October 23, 2000 in which he stated that "A grant of individual unemployability will satisfy my appeal in its entirety." In an October 30, 2000 rating decision, the RO granted the Veteran entitlement to a total disability rating based upon individual unemployability (TDIU). The rating decision stated: "This decision constitutes a grant of the benefits sought on appeal. Please clear the appeal record." A copy of the rating decision and November 7, 2000 notification letter were sent to the Veteran. The October 23, 2000 written statement was signed by the Veteran and received at the RO on October 24, 2000. It included his name and file number. The Veteran had several notices of disagreement pending at that time, to include for increased ratings and SMC based upon aid and attendance, and he clearly stated that a grant of a TDIU would satisfy his appeal in its entirety. Thus, the Board finds that the Veteran withdrew his June 2000 and September 2000 notice(s) of disagreement, to include as to the denial of entitlement to SMC based upon aid and attendance under 38 U.S.C.A. § 1114(l). The Board has considered whether the Veteran subsequently submitted additional correspondence within one year of the March 2000 and July 2000 rating decisions that could be accepted as a new notice of disagreement as to the denial of SMC based upon aid and attendance. In the October 2000 rating decision, in addition to granting entitlement to a TDIU, the RO also granted entitlement to SMC under 38 U.S.C.A. § 1114(s) from January 20, 2000 to September 1, 2000. The Veteran was notified of this decision and of his appellate rights by letter dated November 7, 2000. In a statement received in January 2001, he stated that he felt that en error may have been made in the effective date for the award of his SMC (e.g., under 38 U.S.C.A. § 1114(s)) and that he felt it should go back to July 1, 1999. In a letter dated May 25, 2001, the RO explained the reason for the effective date that was assigned for SMC under 38 U.S.C.A. § 1114(s) and notified the Veteran that if he disagreed he had one year from November 7, 2000 to submit an NOD. In a statement dated July 11, 2001, the Veteran's representative wrote "Veteran NOD. VA/RO 5/25/01 Denial decision." In an accompanying VA Form 21-4138 dated July 11, 2001, the Veteran expressed disagreement with a May 2001 rating decision that denied entitlement to automobile and adaptive equipment. In a July 25, 2001 statement, the Veteran's representative wrote "NOD w/VA rating decision denying Special Monthly Compensation." The representative specifically referenced three VA Form 21-4138, dated July 16, 2001 that were prepared by the Veteran. In the relevant VA Forms 21-4138, the Veteran explained that he disagreed with the RO letter dated May 25, 2001 that denied SMC under 38 U.S.C.A. § 1114(s), specifically with respect to the effective date assigned for this benefit in the October 2000 rating decision. He stated that was submitted a request for SMC as 100% with additional 60%, as he felt he was entitled. The RO sent the Veteran a statement of the case addressing this claim and the claim for automobile and adaptive equipment in April 2002; however, he did not perfect an appeal. Upon review of the statements provided by the Veteran during the applicable time period (i.e., from October 24, 2000, to May 8, 2001 and/or August 1, 2001), at no time did he express dissatisfaction or disagreement with the March 2000 and/or July 2000 RO denials of special monthly compensation based upon the need for aid and attendance under 38 U.S.C.A. § 1114(l). See 38 U.S.C.A. § 20.201. Rather, he disagreed with the October 2000 rating decision concerning the effective date assigned for special monthly compensation under 38 U.S.C.A. § 1114(s). Therefore, as the Veteran withdrew his June 2000 and September 2000 notice(s) of disagreement in October 2000, to include as to the denial of entitlement to SMC based upon aid and attendance under 38 U.S.C.A. § 1114(l); and as he did not submit a new notice of disagreement within one year of the March 2000 and July 2000 rating decisions that denied entitlement to SMC based upon aid and attendance under 38 U.S.C.A. § 1114(l); the Board finds that the July 1999, October 1999, March 2000, and July 2000 rating decisions became final. 38 U.S.C.A. § 7105. Thereafter, additional medical records were received, to include VA treatment records dated between October 2000 and November 10, 2004 (e.g., the date of the grant of SMC based on the need for aid and attendance). See 38 C.F.R. § 3.157. The Veteran also submitted a written statement claiming increased ratings for his service-connected disabilities on August 1, 2002. See Bradley v. Peake, 22 Vet. App. 280 (2008). During the applicable time period (between October 2000 and November 10, 2004), the Veteran was service connected for a left total knee replacement; warts on his hands and feet; recurrent strain of the left ankle; chondromalacia patella of the right knee; hypertension; a forehead scar; hemorrhoids; and infectious hepatitis. Upon review of the medical evidence, the Veteran was treated primarily for a nonservice-connected psychiatric disorder. In March 2001, it was noted that he was attempting to go back to school. Other records show that he had left knee, right knee, and left ankle pain and was ambulating with a cane. See VA treatment records, dated January 23 and 29, 2001, and May 16, 2001. In November 2000, it was noted that he still had some pain but it was getting much better and he could ambulate. He was provided a brace for his left knee in January 2001. In June 2001, it was noted that the Veteran was living in a trailer home. He walked with a cane and complained of knee pain. He was living alone and did not have a phone or a contact person. During hospitalization for psychiatric problems in June 2001, it was noted that the Veteran was out of bed and that he ate 100% of his meal without any problems. He wanted to be discharged home. It was also noted that his blood pressure was controlled by medication. He had been out of his room and had been no management problem. Upon discharge, it was noted that he had a slow gait but could complete his activities of daily living (ADLs) by himself. Thereafter, the Veteran continued to be seen for outpatient treatment, including for his left knee. He was again hospitalized for nonservice-connected psychiatric problems in August 2002. He was up walking around and also used his wheelchair at intervals. Upon discharge, he went to stay at his aunt's home and she indicated that she would see that he is compliant with his medications and diabetic diet. The Veteran was afforded a VA examination in November 2002. He reported that he could brush his teeth, drive a car, and dress himself. However, he could not cook, walk, shower, climb stairs, shop, take out the trash, or push a lawnmower. The examiner noted that he had poor general hygiene. The examiner stated that the Veteran could perform some activities of daily living. However, most were associated with pain and discomfort with inability to perform those that involve weight bearing and exertion. On November 10, 2004, the Veteran submitted a statement requesting aid and attendance. The RO denied this claim in March 2005, and the Veteran perfected an appeal. In a November 2009 decision, the Board granted the Veteran's claim for SMC based on the need for aid and attendance. In January 2010, the RO implemented the Board's decision and assigned an effective date of November 10, 2004. As noted above, the Veteran submitted a claim for increased disability ratings on August 1, 2002. Shortly thereafter, his VA examination in November 2002 revealed that he could perform some activities of daily living. However, most were associated with pain and discomfort with inability to perform those that involve weight bearing and exertion. The findings reported at the time of the November 2002 VA examination reveal that the Veteran required aid and attendance at that time. Thus, the criteria for an effective date of August 1, 2002, for the award of SMC based upon the need for aid and attendance (the date of the Veteran's claim for an increase) are met. With respect to entitlement to an effective date prior to August 1, 2002, the evidence dated between October 2000 and August 2002 did not indicate that the Veteran was in need of regular aid and attendance due to his service-connected disabilities. As noted above, he was treated for left knee, right knee, and left ankle pain. However, he was able to ambulate with a cane and he was living in a trailer home. He was living alone and did not have a contact person. During hospitalization for psychiatric problems in June 2001, it was noted that the Veteran was out of bed and that he ate 100% of his meal without any problems. He wanted to be discharged home. It was also noted that his blood pressure was controlled by medication. Upon discharge, it was noted that he had a slow gait but could complete his activities of daily living (ADLs) by himself. There is no indication in these records that the Veteran met any of the criteria in 38 C.F.R. § 3.352(a), or otherwise required care or assistance on a regular basis for protection from hazards or dangers incident to his daily environment as a result of his service-connected disabilities. Therefore, the Board finds that an effective date prior to August 1, 2002 for an award of SMC based upon the need for aid and attendance is not warranted. Finally, at his March 2013 hearing, the Veteran testified that another VLJ at the Board had previously ruled that he was entitled to aid and attendance benefits effective from 2000. A review of the record shows that the Veteran was granted aid and attendance benefits in a December 2009 Board decision, which was implemented in the January 2010 rating decision on appeal. That Board decision merely referenced the fact that the Veteran was granted a TDIU in September 2000. There is nothing in that decision to suggest that the Board had assigned an effective date of September 2000 for aid and attendance benefits. ORDER Entitlement to an effective date of August 1, 2002, for the grant of special monthly compensation for aid and attendance is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs