Citation Nr: 1630787 Decision Date: 08/03/16 Archive Date: 08/11/16 DOCKET NO. 11-21 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an effective date earlier than November 3, 2008, for the award of special monthly compensation pursuant to 38 U.S.C.A. § 1114(l). 2. Entitlement to service connection for antiphospholipid syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from August 1963 to December 1966. In a January 2006 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, denied special monthly compensation based on the need for the regular aid and attendance of another person. The appellant perfected an appeal of the RO's determination via his submission of a timely VA Form 9 in November 2006. Before the appeal was certified to the Board of Veterans' Appeals (Board), in an April 2011 rating decision, the RO in Baltimore, Maryland, granted special monthly compensation based on loss of use of both feet, effective November 3, 2008. The Board notes that special monthly compensation is payable at the "l" rate (i.e. pursuant to to 38 U.S.C.A. § 1114(l)), if a veteran, as the result of service-connected disability, has suffered the loss of use of both feet or is so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2015). Although the RO awarded the special monthly compensation sought on appeal by the appellant, he thereafter perfected an appeal with respect to the effective date of that award via his submission of a VA Form 9 in July 2011. The matter presently before the Board is on appeal from the April 2011 rating decision which awarded special monthly compensation pursuant to 38 U.S.C.A. § 1114(l), effective November 3, 2008. The appellant seeks an effective date of August 23, 2006. In April 2016, the appellant testified at a Board hearing in Washington, D.C., before the undersigned Veterans Law Judge. In addition to the earlier effective date issue discussed above, the Board notes that, in an August 2014 rating decision, the RO, inter alia, denied service connection for cancer of the blood, claimed as antiphospholipid syndrome. The appellant submitted a notice of disagreement with the RO's determination in December 2014. The record shows that, in July 2015, the RO sent the appellant a letter stating that he was required to submit a completed VA Form 21-0958, Notice of Disagreement, in order to continue with his appeal. The RO indicated that "we will take no further action until we receive your completed VA Form 21-0958." The Board notes that VA recently amended its regulations to require that claimants file a Notice of Disagreement on a prescribed form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014); 38 C.F.R. § 20.201(a) (2015). VA will not accept an expression of dissatisfaction or disagreement in any other format. Id. This requirement, however, applies only in cases where VA provides such a form with the Notice of Appeal Rights sent with the notice of a decision on a claim. Moreover, these amended regulations are applicable only to claims filed on or after March 24, 2015. As the appellant's notice of disagreement was submitted prior to the effective date of the change, his claim was pending prior to March 24, 2015. Thus, the amendments are not applicable to this claim. Under these circumstances, the appellant's December 2014 notice of disagreement is valid, and a remand is required for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the RO is necessary). The issue of entitlement to service connection for antiphospholipid syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The appellant's claim for special monthly compensation pursuant to 38 U.S.C.A. § 1114(l) based on the need for the regular aid and attendance of another person was received by VA on March 3, 2005. 2. The record reflects that the appellant met the criteria for an award of special monthly compensation based on the need for the regular aid and attendance of another person as of August 23, 2006. CONCLUSION OF LAW The criteria for an effective date of August 23, 2006, for the award of special monthly compensation based on the need for the regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2014); 38 C.F.R. §§ 3.400, 3.401 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2015). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision. Background In January 1993, VA received the appellant's original application for VA compensation or pension seeking, inter alia, service connection for posttraumatic stress disorder (PTSD). In a May 1995 rating decision, the RO granted service connection for posttraumatic stress disorder PTSD and assigned an initial 100 percent rating, effective February 10, 1992, noting that the appellant had been under treatment for PTSD since that time. In addition, the RO denied special monthly compensation based on the need for the regular aid and attendance of another person, or by reason of being housebound. In particular, the RO found that the record did not show that the criteria for that benefit had been met, to include a showing that the appellant was blind or so helpless as to require the regular aid and attendance of another person. Nor was he confined to the home or immediate area due to service-connected disability. The appellant did not appeal the RO's determination, nor was new and material evidence received within one year of notification of that decision. In February 1997, the appellant was afforded a VA medical examination to evaluate the severity of his service-connected disability. The examiner noted that he remained under treatment for PTSD with therapy and medication, attended individual therapy every two weeks, and participated in group therapy on a weekly basis. The examiner concluded that the appellant was totally disabled due to PTSD. In a May 1997 rating decision, the RO continued the 100 percent rating for PTSD. In addition, the RO again denied special monthly compensation based on the need for the regular aid and attendance of another person. In particular, the RO found that the record continued to show that the criteria for that benefit had not been met, to include a showing that the appellant was so helpless as to require the regular aid and attendance of another person. The appellant did not appeal the RO's determination, nor was new and material evidence received within one year of notification of that decision. The record shows that the appellant thereafter continued to file additional compensation claims, including claims for service connection for multiple disabilities he claimed were associated with exposure to Agent Orange. In a November 2003 rating decision, the RO granted service connection for diabetes mellitus and peripheral neuropathy of both lower extremities. The RO assigned an initial 20 percent rating for the appellant's diabetes mellitus and separate 10 percent ratings for his peripheral neuropathy, effective October 2, 2002. On March 3, 2005, VA received a claim from the appellant for special monthly compensation based on the need for the regular aid and attendance of another person. In support of the claim, VA received a completed VA Form 21-2680, Examination for Housebound or Permanent Need for Regular Aid and Attendance, on which a physician noted that he appellant complained of chronic pain due to degenerative joint disease in multiple joints. He had been driven to the hospital by a friend, but attended the examination unaccompanied. The examiner further noted that the appellant was able to walk one block without the assistance of another person using a cane. In a January 2006 rating decision, the RO denied special monthly compensation based on the need for the regular aid and attendance of another person, or by reason of being housebound, noting, inter alia, that the appellant had contended that nonservice-connected disabilities, including obesity and orthopedic disabilities, required him to obtain assistance in daily living. The RO explained that special monthly compensation was only payable when the need for aid and attendance and housebound is due to service-connected disabilities. The appellant perfected an appeal of the RO's determination via his submission of a VA Form 9 in November 2006. In support of his appeal, the appellant claimed that service connection was warranted for his knee and leg disabilities. See VA Form 21-4138, received on July 20, 2006. In support of his claim, the appellant submitted a June 2006 medical statement from a VA orthopedic surgeon who indicated that the appellant had undergone a total left knee arthroplasty with subsequent complications. As a result, he was essentially wheelchair bound. He also had peripheral neuropathy. He was able to feed himself, but required assistance with meal preparation and shopping. In general, he did not need assistance in bathing or tending to other hygiene needs, as he had cognitive function and the use of his hands. The physician indicated that the appellant was not confined to bed, was not blind, was able to sit up, and was able to care for the needs of nature. It was possible for the appellant to travel, but he required assistance and planning to use public transportation. He was able to leave home without assistance. The VA orthopedic surgeon indicated that the appellant did not require nursing care, but could use assistance with some activities of daily living. VA clinical evidence obtained in support of the claim shows that, in February 2006, the appellant underwent total knee arthroplasty on the left side. He thereafter developed complications, including cellulitis and MRSA, requiring sixteen subsequent surgical procedures, including an August 23, 2006, above the knee amputation. A September 2006 discharge summary noted that the appellant had had at least two falls during the course of admission, as he was attempting to get in or out of bed. Discharge instructions included daily dressing changes and avoidance of work and driving. At a VA medical examination in October 2006, the appellant reported that he needed help with cooking and cleaning and had used his own funds to hire an attendant. He indicated that, since his amputation, he had been in a rehabilitation facility. The examiner noted that the appellant was able to shower and perform rudimentary dressing, but had difficulty in transferring. The examiner noted that the appellant would need help with cooking, shopping, and dressing his stump, as well as with bathing because standing for any prolonged time with one leg presented a fall risk. The diagnoses included loss of use of the left leg, status post above-the-knee amputation, secondary to infection in the left leg following knee replacement. The examiner indicated that the appellant's service-connected diabetes mellitus had been a contributing factor, predisposing him to infection. The examiner concluded that the appellant required aid and attendance following his amputation. The appellant was thereafter scheduled for an additional VA aid and attendance examination, but he failed to report without explanation. In a June 2007 rating decision, the RO, inter alia, granted service connection for amputation left lower extremity and assigned an initial 100 percent rating, effective August 23, 2006, and a 60 percent from February 1, 2007; granted special monthly compensation based on anatomical loss of the left lower extremity, effective August 23, 2006; and increased the rating for the appellant's service-connected peripheral neuropathy of the right lower extremity to 20 percent effective June 20, 2006. The RO awarded special monthly compensation at the housebound rate effective August 23, 2006, based on the 100 percent disability rating for the appellant's PTSD with his additional disabilities combined to 60 percent or more. See 38 U.S.C.A. § 1114(s). The RO again denied special monthly compensation based on the need for aid and attendance, noting that the appellant had failed to report for a necessary VA medical examination to determine the chronic level of his disability. The RO, however, did not issue a Supplemental Statement of the Case regarding the aid and attendance issue, despite the fact that the issue remained on appeal, and the record shows that the appellant continued to pursue his claim for special monthly compensation based on the need for the aid and attendance of another person. In a statement received by VA on October 29, 2007, for example, the appellant indicated that he wished to reapply for aid and attendance benefits and requested that a VA medical examination be scheduled to confirm his eligibility for that benefit. He claimed that he had not been notified of the previous examination and was able to report. In a February 2008 statement, the appellant asked that his aid and attendance claim be reconsidered. He again claimed that he had failed to report for the examination, as he had not received notice of it. The appellant was afforded a VA medical examination in February 2008. The appellant claimed that he was unable to do anything without help. The examiner noted that the appellant had not required an attendant at the examination and had used handicapped transportation to come to the hospital. He further indicated that the appellant was not permanently bedridden, did not use glasses, and appeared to be capable of managing his own affairs. He had a mild capacity to protect himself and used a motorized wheelchair. The examiner noted that the appellant lived in a house with his son. The examiner indicated that the appellant was able to bathe and perform some exercises with help. The appellant reported that he left his house about once a month to seek medical care. The examiner noted that the appellant's ambulatory restrictions were likely to be permanent. In an October 2008 letter, a VA physician indicated that the appellant was under his care for service-connected diabetes mellitus, PTSD, and an above-the-right knee amputation, as well as chronic shoulder pain due to a rotator cuff tear. The physician requested consideration for aid and attendance, as the appellant was dependent on others for activities of daily living, including driving, shopping, preparing meals, and maintaining an acceptable level of cleanliness. On November 3, 2008, the appellant again submitted a request for aid and attendance. In support of his claim, the appellant submitted a November 2008 medical statement for consideration of aid and attendance in which a physician indicated that, as a result of the appellant's above-the-knee amputation, chronic shoulder pain, and PTSD, he was unable to walk unaided, cook for himself, bathe and tend to other hygiene needs on his own, or care for the needs of nature without assistance. He was not confined to bed, although he experienced right leg weakness and could not get out of bed at times. The physician indicated that, due to the severe nature of his disability, it was his professional opinion that the appellant needed to be evaluated for aid and attendance. The appellant underwent a VA medical examination in April 2009. The examiner noted that the appellant had travelled to the examination with an attendant. He was not bedridden and exhibited a moderate capacity to protect himself from daily hazards. The appellant reported that he lived in a home with his son and daughter-in-law, who took care of him. He was not ambulatory and used a motorized wheelchair. In a November 2009 letter, the appellant indicated that, although he filed his original claim for aid and attendance benefits in March 2005, he felt the most appropriate effective date for that benefit was August 23, 2006, which was the date of his amputation. In a November 2009 letter, the appellant's VA physician indicated that the appellant was in need of assistance in activities of daily living, attending to the needs of nature, transportation to medical care, and supervision of medication. He further noted that the appellant currently paid an attendant to prepare his meals, keep his home reasonably clean, meet his needs of wants of nature, and transportation for all medical appointments and services. He also had a nurse from the local medical community who supervised his daily need for medication. In a November 2009 VA Form 21-2680, the appellant's VA physician noted that, as a result of his left leg amputation, right lower extremity peripheral neuropathy, right knee disability, right shoulder disability, and chronic back pain, the appellant was unable to prepare his meals, administer his medications, shower, travel, and attend to the wants of nature without the assistance of another person. At his April 2016 Board hearing, the appellant argued that an effective date of August 23, 2006, was warranted. He argued that, although he had been awarded special monthly compensation at the housebound rate from that date, he was entitled to the higher aid and attendance rate from that date, as he had required a nurse and assistant to come to his home on a daily basis to take care of him, including preparing his food, helping him take a shower, get dressed, and attend to the calls of nature. Applicable Law Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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) (West 2014). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2015); see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). In other words, three possible effective dates may be assigned depending on the facts of the case. First, if an increase in disability occurs after the claim is filed, the effective date is the date that the increase is shown to have occurred, i.e. the date entitlement arose. 38 C.F.R. § 3.400(o)(1). Second, if an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred, i.e. the date the increase is factually ascertainable. 38 C.F.R. § 3.400(o)(2). Third, if the increase in disability precedes the claim by more than a year, the effective date is the date that the claim is received. 38 C.F.R. § 3.400(o)(2). To make its determination, the Board must review all the evidence of record. Hazan v. Gober, 10 Vet. App. 511, 521 (1997); see also VA O.G.C. Prec. Op. No. 12-98, 63 Fed. Reg. 56704 (1998). Pursuant to 38 C.F.R. § 3.401(a)(1), awards of aid and attendance or housebound benefits will be effective the date of receipt of claim or date entitlement arose, whichever is later, except as provided in § 3.400(o)(2). When an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, however, any additional pension or compensation payable by reason of need for aid and attendance 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. Special monthly compensation is payable at the "l" rate if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, is blind in both eyes, is permanently bedridden, or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2015). 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. 38 C.F.R. § 3.352(a) (2015). 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 a 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). VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Applying the facts in this case to the legal criteria set forth above, the Board concludes that an effective date of August 23, 2006, for the award of special monthly compensation based on the need for the regular aid and attendance of another person is warranted. As noted above, the law provides that awards of aid and attendance will be effective on the date of receipt of claim or date entitlement arose, whichever is later. In this case, the appellant's claim for special monthly compensation based on the need for aid and attendance was received by VA on March 3, 2005. With respect to the question of when entitlement to that benefit arose, the appellant argues that he met the legal criteria for entitlement to special monthly compensation based on the need for aid and attendance as of August 23, 2006, which was the date of his service-connected above-the-knee amputation. He has credibly testified that he required assistance with activities of daily living since that time due to his service-connected disabilities. The record also contains clinical evidence corroborating that assertion. His VA physician has submitted multiple statements and examination reports in support of the appellant's claim in this regard. With resolution of all doubt in the appellant's favor, the Board assigns an effective date of August 23, 2006, for the award of special monthly compensation based on the need for the regular aid and attendance of another person. ORDER An effective date of August 23, 2006, but no earlier, for the award of special monthly compensation pursuant to 38 U.S.C.A. § 1114(l) based on the need for aid and attendance is granted, subject to the laws and regulations governing monetary benefits. REMAND For the reasons set forth in detail in the Introduction, a remand is required with respect to the issue of entitlement to service connection for antiphospholipid syndrome. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the RO is necessary). Accordingly, the case is REMANDED for the following action: The AOJ should furnish a Statement of the Case to the appellant and any representative addressing the issue of entitlement to service connection for antiphospholipid syndrome. Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the appellant that the claims file will not be returned to the Board for appellate consideration of this particular issue following the issuance of the SOC unless he perfects his appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs