Citation Nr: 1603149 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 12-31 085A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date prior to July 29, 2005, for the grant of special monthly compensation based on the need for regular aid and attendance of another, for both accrued and substitution purposes. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from October 1941 to October 1945, and he died in June 2012. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Los Angeles, California, Regional Office (RO), of the Department of Veterans Affairs (VA), which originally assigned a January 5, 2009, effective date for the establishment of special monthly compensation based on the need of regular aid and attendance of another. In an August 2013 rating decision, the RO assigned an effective date of July 29, 2005. The Appellant, who has been substituted as the claimant in this case, is pursuing this claim for both accrued and substitution purposes. 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). In December 2014, the Board issued a decision denying this claim, and in June 2015, the parties to this appeal entered into a Joint Motion to Vacate and Remand (Joint Motion) the December 2014 Board decision, concluding that the Board's statement of reasons and bases was not sufficiently clear so as to allow appellate review. The United States Court of Appeals for Veterans' Claims (Court) issued an Order granting the Joint Motion in June 2015. The case has now been returned to the Board for readjudication. FINDINGS OF FACT 1. The Veteran filed a claim expressly seeking a higher rating for his lower back disability on November 23, 1998, at which time a claim for special monthly compensation (SMC) based on the need for aid and attendance of another was implicitly raised as part and parcel of the underlying increased rating claim. 2. This November 1998 express increased rating claim and implied SMC claim remained in appellate status until March 2011, at which time the Board denied the increased rating claim but granted SMC based on the need for aid and attendance of another. 3. The medical evidence establishes that as of November 23, 1998, the date of receipt of his claim explicitly seeking a higher rating for his back disability and implicitly claim for SMC, the Veteran could not function independently and required the aid and attendance of another due to his service-connected lower back disability. CONCLUSION OF LAW The criteria for an effective date of November 23, 1998 for the award of special compensation based on the need of aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114(l) , 5110, 7105 (West 2014); 38 C.F.R. §§ 3.400, 3.401(a)(1), 3.350(b), 3.352(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION In March 2011, the Board granted the Veteran special monthly compensation based on his need for the aid and attendance of another based on evidence that his various service-connected disabilities, including his service-connected lower back disability, rendered him unable to function independently and required him to enlist the aid and attendance of another. Thereafter, the RO effectuated the Board's grant of SMC and assigned an initial effective date of January 5, 2009. The Veteran challenged this effective date, which was subsequently amended to July 2005, as reflected in an August 2013 rating decision and supplemental statement of the case. The Appellant, through her attorney, seeks an effective date of November 23, 1998, the date the Veteran filed a lower back increased rating claim that remained in appellate status until March 2011, at which time the Board denied the increased rating claim but granted SMC for aid and attendance of another. The Appellant's attorney asserts that when the Veteran sought an increased rating for his lower back disability, he was seeking the maximum benefit available to him per VA regulations, which included SMC based on his need for aid and attendance of another. With regard to the criteria for establishing eligibility for SMC based on the need for aid and attendance, this form of special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b)(3). Determinations as to the 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: the inability of the claimant to dress or undress herself or to keep herself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; the 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 her daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the 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. 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 that the claimant 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 claimant 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 on an opinion that the claimant's condition is such as would require him to be in bed. The determination must be based on the actual requirement of personal assistance from others. Id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). With regard to the criteria for establishing effective dates for the award of SMC based on the need for aid and attendance of another, the effective date will be commensurate with the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.401(a)(1). As to what may constitute an implied claim for SMC, a veteran is presumed to be seeking the maximum benefit allowed by law or regulation, and such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (requiring the Board to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Moreover, VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Therefore, a claim for increased disability compensation may include the "inferred issue" of entitlement to SMC even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010) (requiring VA to assess all of the claimant's disabilities to determine whether entitlement to SMC under 38 U.S.C.A. § 1114(s) is established whenever a veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for SMC). As referenced above, at the time the Veteran was awarded SMC based on his need for aid and attendance of another (per his express claim seeking SMC), the Board also adjudicated the Veteran's claim seeking a rating higher than 60 percent for his long-standing service-connected lower back disability, which had been in appellate status since the claim was asserted in November 1998. The Veteran's attorney argues that the Veteran should be awarded an effective date of November 1998, commensurate with the date of receipt of his increased rating claim, as the November 1998 claim expressly seeking a higher rating for a back disability also implicitly sought a higher rating based on SMC, as the Veteran is assumed to be seeking the maximum possible rating. The Board finds this argument to be compelling and consistent with the paternalistic mission of the Board and the recent case law promulgated by the Court. Further, the record contains evidence sufficiently establishing that the Veteran did indeed require the aid and attendance of another based on his service-connected lower back disability at the time he sought an increased rating in November 1998. By way of background, the Board notes that the Veteran sustained a significant lower back injury during his World War II service when a nearby explosion triggered service members to dive into a fox hole for cover, several of whom landed on top of the Veteran, injuring his lower back. During service, the Veteran was treated for his back injury, which was characterized as a herniated vertebral disc, and his residual disability was later service-connected, effective as of his discharge from service. Thus, this injury, incurred in the early 1940's, had steadily progressed in severity during the more than fifty years between the time of his injury and when he sought an increased rating in 1998. In that regard, the evidence then of record reflected that the Veteran's ability to ambulate, remain seated for periods of time, utilize his lower extremities, and dress himself were significantly impaired. Specifically, a January 1996 VA general medical examination noted that the Veteran required assistance walking due to his lower back disability; an August 1996 VA neurological examination outlined the Veteran's back-related functional impairments, which included the inability to put on his own shoes; an August 1996 VA psychiatric assessment reflects the Veteran's report that he requires the help of his wife to perform many of the activities of daily living, including putting on his pants and tying his shoes; and in a November 1997 statement, the Veteran's treating orthopedist stated that the Veteran's back disability made prolonged standing or sitting difficult, and the physician did not advise that the Veteran engage in any lifting or bending. When considering the evidence above and resolving all doubt in the Veteran's favor, the Board finds that on November 23, 1998, VA received an explicit lower back increased rating claim and an implicit claim for SMC based on the need for aid and attendance of another, at which time the evidence established that the Veteran needed the aid and attendance of another to perform many of his activities of daily living, such as dressing himself, and likely preparing meals and traveling to appointments, given his limitations regarding standing and walking and prohibition against lifting or bending. As referenced above, the fact that his spouse regularly rendered this aid does not undermine his need for such aid or entitlement to related compensation. Based on the foregoing, the Board concludes that a basis for assigning an effective date of November 23, 1998 for the grant of SMC based on the need for aid and attendance of another has been presented, and the assignment of this effective date is warranted. ORDER Entitlement to an effective date of November 23, 1998 for the award of special monthly compensation based on the need of aid and attendance of another person is granted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs