Citation Nr: 1533804 Decision Date: 08/07/15 Archive Date: 08/20/15 DOCKET NO. 14-28 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an earlier effective date, prior to September 30, 2010, for the grant of special monthly compensation based on a need for regular aid and attendance or based on housebound status. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1970 to February 1974, from August 1974 to June 1976, and from October 1981 to June 1983. The Veteran passed away in November 2011. The appellant is the Veteran's surviving spouse, who as noted below, is substituted for the Veteran in this appeal. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which implemented a February 2013 Board decision that granted SMC based on the Veteran's need for aid and attendance prior to his death. The Board notes that previously, in an April 2007 rating decision, the RO denied the Veteran's claim of entitlement to SMC based on a need for aid and attendance, or on housebound status. The Veteran disagreed with the RO's determination, and perfected an appeal as to that issue. The Board denied the Veteran's SMC claim in a June 2010 decision. The Veteran appealed to the Court of Appeals of Veterans' Claims (the Court), which in November 2010 issued a memorandum decision vacating the Board's denial and remanding the matter to the Board for additional explanation. The Board in turn remanded the Veteran's SMC claim to the agency of original jurisdiction for additional evidentiary review in March 2011. After such was achieved, the RO readjudicated the Veteran's claim in an August 2011 supplemental statement of the case (SSOC) and returned the Veteran's claims file to the Board for further appellate review. In February 2012, the Board dismissed the Veteran's SMC claim due to his death, and referred the matter of whether the appellant, his surviving spouse, may be substituted for the Veteran so that she may continue the Veteran's appeal in his place. In a July 2012 memorandum, the RO approved the appellant's request for substitution in this matter. The Board then had jurisdiction to grant the SMC claim. The RO then implemented that decision and established September 30, 2010 as the effective date. The effective date is now on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT It is at least as likely as not that the Veteran's service-connected PTSD resulted in the need of aid and attendance on the date of the claim, January 26, 2007. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date, prior to September 30, 2010, for special monthly compensation based on a need for aid and attendance have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.351, 3.352, 3.400 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2014). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. SMC is payable at a specified rate if the veteran, as the result of service-connected disabilities, is in need of regular aid and attendance. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is 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; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.351(b). The following will be accorded consideration in determining the need for regular aid and attendance: 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 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 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. "Bedridden" will be a proper basis for the determination. See 38 C.F.R. § 3.352(a). A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. 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 that 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. Id. Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." See Turco v. Brown, 9 Vet. App. 222, 224 (1996). The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Special monthly compensation can also be payable at a specified rate if a veteran, as the result of service-connected disability, has one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher or he is permanently housebound. The veteran will be found to be permanently housebound if, due to his service-connected disabilities, he is substantially confined to his home or the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that such confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). One difference between 38 U.S.C.A. § 1114(s) (housebound) and 38 U.S.C.A. § 1114(l) (aid and attendance) is that housebound status requires a service-connected disability to be rated 100 percent. In the 2013 decision, the Board granted SMC based on the need for aid and attendance. The RO granted SMC effective September 30, 2010 because that was the date the Veteran received a 100 percent rating for PTSD. However, the Board notes that because the SMC was based on aid and attendance, the 100 percent PTSD rating was not required. Therefore, the issue is whether the Veteran's condition justified SMC based on aid and attendance prior to September 30, 2010. The Veteran filed for SMC on January 26, 2007 and his representative asserts the earlier effective date for the award of SMC should be that date. The effective date will be the date of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). 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). The essential elements for any claim are: (1) An intent to apply for benefits; (2) An identification of the benefits sought; and (3) A communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79 (2009). A formal claim is a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a). An informal claim is any communication or action indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend a claimant who is not sui juris. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Id. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date; otherwise, the effective date will be the date of receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2); 38 C.F.R. § 3.400(o). If an increase in disability precedes the claim by more than a year, the effective date is the date the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2) ). See Harper v. Brown, 10 Vet App 125, 126 (1997). When the Veteran filed his claim for SMC he was rated 70 percent for PTSD. However, the medical records note that he also had problems with alcohol and depression that had been reported to be unrelated to his PTSD. The issue had been whether the depression or PTSD caused the Veteran's need for aid and attendance. The medical evidence was contradictory in that regard. The Board has noted that a statement dated January 17, 2007, from a private physician, reflects that the Veteran had diagnoses of posttraumatic stress disorder, a partial small bowel obstruction, and chronic low back pain. The physician indicated that the Veteran needed the aid and attendance of someone else in ordinary activities of daily living, and that he was housebound. The examiner noted that the housebound status was due to having minimal ambulation due to using a walker and a wheelchair, and due to having panic attacks around other people. The Veteran was afforded an aid and attendance examination by VA in December 2007. The examiner noted that the Veteran got nervous and upset when around people, was depressed and anxious, and had panic attacks. The examiner also discussed nonservice connected disabilities. In essence, the examiner concluded that the combination of disabilities caused the Veteran to need help a home, but that the mental problem alone would not qualify him for Aid and Attendance. Similarly, a VA examiner in July 2009 concluded that the Veteran's PTSD alone did not render him unable to perform daily self-care on a regular basis. The evidence also included an October 2010 VA psychiatric assessment. The Board previously denied the claim based on these examination reports. The Court vacated the Board's decision based in part on the Board's reliance on the December 2007 examination in spite of the fact that the Board had previously remanded the case for another examination after finding that the December 2007 examination was deficient. Following the Court's November 2010 memorandum decision, in March 2011, the Board remanded the Veteran's SMC claim so that he could be afforded another VA mental health examination. The Veteran was afforded another VA examination in May 2011. The examiner concluded that the Veteran's PTSD does not prevent him from protecting himself from the hazards of his environment or render him unable to perform daily self-care on a regular basis, or otherwise render him permanently housebound. The examiner noted that the Veteran also had depression but he was not imminently suicidal. In granting the claim for aid and attendance benefits in the decision of February 2013, the Board offered the following analysis: ...the evidence of record is in equipoise as to whether a factual need for aid and attendance existed based exclusively on the Veteran's service-connected PTSD. Prior to his death, the Veteran was diagnosed with both PTSD and major depressive disorder. As noted above, the RO awarded the Veteran service connection for PTSD in 2003, and recently assigned the Veteran a 100 percent schedular disability rating for this PTSD in a March 2011 rating decision. The Veteran was not awarded service connection for major depressive disorder. Of particular import in this case is the fact that the Veteran's overall mental health symptomatology included an ongoing suicidal ideation. The Veteran did attempt suicide in the past, and at times exhibited a plan to kill himself "without appearing as suicide so [his] wife would still get benefits." See the Veteran's March 16, 2006, VA Mental Health Outpatient Note. It is the appellant's contention that the Veteran required aid and attendance of another person in large part to keep him from harming himself. See the April 1, 2009, Informal Hearing Presentation, page 2. In January 2007, the Veteran's attending physician diagnosed the Veteran with severe PTSD, with associated panic attacks and mental confusion. The physician also highlighted two other nonservice-connected disabilities [small bowel obstruction and chronic low back pain] and determined that the patient was indeed in need of the aid or attendance of someone else in ordinary activities of daily living. Although this physician did not specifically state that the Veteran's PTSD in and of itself caused the Veteran to require aid and attendance, she did crucially indicate that the Veteran was not "mentally able to protect himself from the everyday hazards of life." See the January 17, 2007 Report from M.K.S. In December 2007, a VA examiner also determined that the Veteran needed the aid and attendance of another, but summarily stated that his "mental problem would not qualify him for Aid and Attendance." See the December 2007 VA examiner's report, page 2. As pointed out by the Board in its April 2009 remand, the December 2007 VA examiner did not adequately discuss the Veteran's psychiatric history, to include his suicidal ideation and plan, and what role, if any such might play in his need for assistance. A new examination was ordered. In July 2009, the Veteran appeared for a VA psychiatric examination. In pertinent part, the July 2009 VA examiner recognized the Veteran's complaints of constant depression, suicidal thoughts, lack of socialization, lack of motivation to leave his room except to go to the VA, and avoidance of people. He also noted that the Veteran sometimes got lost and did not know his name or where he lived. The examiner questioned the validity of the Veteran's PTSD diagnosis, and clarified his belief that the Veteran had depression and dementia that were more prominent disabilities. In so doing, the examiner essentially linked the Veteran's more serious mental health disability symptoms, to include his suicidal ideation, with his nonservice-connected depression and dementia and not with his PTSD. The examiner noted that the Veteran's depression was related to his history of alcohol dependence and ongoing health problems, and concluded that the Veteran's PTSD alone did not prevent the veteran from protecting himself from hazards from his environment. See the July 2009 VA examiner's report, page 7. Significantly, the July 2009 examiner added that despite the Veteran's own assertion that he needed an aid to be present with him at all times due to his suicidal ideation, he had not required psychiatric hospitalization in the year prior to the examination, or an increased level of care such as intensive outpatient treatment. By this observation, it appears that the July 2009 examiner was implying that if the Veteran's suicidal ideation were so serious as to require aid and attendance he would likely have needed more medical care from mental health professionals. Although it is clear that the Veteran did seek extensive care from the VA and private physicians for his mental health disabilities, the Veteran [and now the appellant] essentially argued that it is precisely because of the aid and attendance already provided by the appellant that the Veteran did not cause harm to himself. In this connection, the Veteran's private physician, Dr. D.W. submitted a letter in December 2009 indicating that the Veteran's psychiatric history included depression, and that the Veteran was a "danger to himself if not for his spouse and her constant attention to his needs." See the December 4, 2009, letter from Dr. D.W. Dr. D.W.'s letter appears to respond to the July 2009 VA examiner's implied conclusions, placing greater emphasis on the aid and attendance the Veteran's spouse had already provided, and noting that but for such care, the Veteran would be a danger to himself. Based on the above, to include (1) the January 2007 physician's assessment that the Veteran was not "mentally able to protect himself from the everyday hazards of life," (2) the inadequacy of the December 2007 VA examiner's findings against a relationship between the Veteran's mental health symptomatology and his need for aid and attendance, (3) the assessment of the December 2009 VA examiner, who appeared to link the Veteran's suicidal ideation to his severe depressive disorder, and (4), the opinion of Dr. D.W., who indicated that without the appellant's constant attention to the Veteran's needs at home, the Veteran's depression would cause the Veteran to be a danger to himself, the Board concludes that the evidence of record favors a finding that the Veteran did in fact need regular aid and attendance due to his mental health disabilities prior to his death. As noted above, the fact that the appellant provided much of this assistance would not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c) (2012). That stated, at its core, the key question in this case is not whether aid and attendance was required due to his mental health disabilities in general, but whether aid and attendance was required based on his service-connected mental health disability in particular, i.e., PTSD. As noted above, the Veteran was not service connected for depression at any time prior to his death. Indeed, in denying the Veteran's aid and attendance claim, the agency of original jurisdiction (AOJ) clearly relied on the medical finding of the July 2009 VA examiner above to disassociate the Veteran's suicidal ideation and other severe mental health symptoms from his service-connected PTSD and attribute them to his depression. Following the Court's November 2010 memorandum decision, the Board remanded the Veteran's SMC claim so that he could be afforded another VA mental health examination. Significantly, an October 2010 VA examiner also concluded that the Veteran's PTSD and depression symptoms could be differentiated, noting that the Veteran's PTSD involved symptoms of re-experiencing stressful events and arousal with "mood symptoms distinct." See the October 2010 VA examiner's report, page 6. Crucially however, unlike the July 2009 VA examiner, the October 2010 VA examiner specifically linked the Veteran's depression with his PTSD, noting that the Veteran's mood condition was "as likely as not secondary to the chronic experience of PTSD symptoms," noting that the onset of PTSD "appears prior to [the] onset of depressive condition . . . ." Thus, in his concluding remarks, the October 2010 VA examiner associated all of the Veteran's serious mental health symptoms with his PTSD, to include chronic suicidal ideation and an inability to maintain hygiene and to complete activities of daily living independently. See id. at page 7. The RO based its decision to award a 100 percent schedular disability rating for the Veteran's PTSD largely on the findings of the October 2010 VA examiner. See the March 2011 rating decision. The Board notes that it is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, the observations of both the July 2009 and October 2010 VA examiners do in fact show that the Veteran's mental health symptoms can be parsed out and attributed to different mental disabilities. It does appear that the Veteran's severe symptoms, to include suicidal ideation with plan, were more likely attributable to his depression than PTSD. Crucially however, although the July 2009 VA examiner linked the Veteran's depression in part to his alcohol abuse, the October 2010 VA examiner specifically linked the Veteran's depression to his longstanding PTSD symptoms and provided a supporting rationale for this conclusion. The October 2010 VA examiner also noted that it was possible that the Veteran's PTSD symptoms also caused the Veteran to develop alcohol abuse problems. See the October 2010 VA examiner's report, page 6. In any event, based on his understanding that the Veteran's PTSD was as likely as not the root cause of his depression, the October 2010 VA examiner grouped together all of the Veteran's mental health symptoms, to include those serious enough to demonstrate a need for aid and attendance of another, and attributed them to his service-connected PTSD. The RO has already relied on such findings in awarding the Veteran a 100 percent disability rating for PTSD prior to his death. As set forth above, although the Veteran clearly had other nonservice-connected physical disabilities that greatly affected his overall health prior to his death, the medical evidence described above supports a finding that a need for aid and attendance can be demonstrated based on the Veteran's overall mental health problems. Further, in light of the findings of both the July 2009 and October 2010 VA examiners discussed above, the Board believes that the evidence is at the very least in equipoise as to whether the Veteran's need for aid and attendance was due solely to his service-connected PTSD. Indeed, there is competent medical evidence both for and against the claim, demonstrating on the one hand that the Veteran's depression with suicidal ideation was unrelated to his PTSD [and instead to alcohol abuse and his other physical disabilities], and on the other that his depression with suicidal ideation was specifically caused or aggravated by his PTSD. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, with resolution of doubt in the substituted appellant's favor, the Board concludes that a grant of entitlement to SMC based on aid and attendance is warranted. It is clear that when granting the claim for aid and attendance, the Board relied on evidence dating back to January 2007. Admittedly, there was conflicting evidence. However, when the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, with resolution of doubt in the appellant's favor, the Board concludes that a grant of entitlement to SMC based on aid and attendance is warranted to the date of claim on January 26, 2007. ORDER Entitlement to an effective date of January 26, 2007, for the grant of special monthly compensation based on a need for regular aid and attendance is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs