Citation Nr: 1751948	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  17-15 678	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to an effective date earlier than March 19, 2015, for the award of special monthly compensation (SMC) based on the need for aid and attendance (A&A) for the Veteran's spouse, M. G.

2.  Entitlement to a higher rate of special monthly compensation (SMC) based on the need for a higher level of aid and attendance (A&A) for the Veteran's spouse.

3.  Entitlement to special monthly compensation (SMC) for the Veteran based on the need for regular aid and attendance (A&A) of another person or at the housebound rate.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America



ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran served on active duty from January 1943 to November 1945.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to SMC based on the need for regular A&A or at the housebound rate is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On February 19, 2015, the RO received a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) that has been accepted as an informal claim of entitlement to SMC based on the need for regular A&A for the Veteran's spouse; no communication received prior to February 19, 2015, may be interpreted as an informal or formal claim of entitlement to SMC based on the need for regular A&A for the Veteran's spouse.

2.  The Veteran submitted a formal claim for entitlement to SMC based on the need for regular A&A for his spouse, M. G., on March 19, 2015.

3.  The Veteran had already been awarded the maximum rate of SMC based on the need for regular A&A for his spouse authorized by 38 U.S.C. § 1115(E)(1) and 38 C.F.R. § 3.351(a)(2).


CONCLUSIONS OF LAW

1.  The criteria for the assignment of an effective date of February 19, 2015, but no earlier, for the award of entitlement to SMC based on the need for regular A&A for the Veteran's spouse have been met.  38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.159, 3.314, 3.400 (2017).

2.  The criteria for entitlement to a higher rate of SMC based on the need for a higher level of A&A for the Veteran's spouse have not been met.  38 U.S.C. §§ 1114, 1115 (2012); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duty to notify was satisfied by a letter dated in March 2015.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Veteran's earlier effective date claim arises from his disagreement with the effective date assigned following the grant of SMC based on the need for regular A&A for the Veteran's spouse.  Once the benefit is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Furthermore, the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

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, 20 Vet. App. 537 (2006).

Any veteran who is entitled to disability compensation at the rates provided in 38 U.S.C. § 1114, whose disability is rated not less than 30 percent disabling, and whose spouse is a patient in a nursing home, or helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person, is entitled to additional compensation.  38 U.S.C. § 1115 (2012).  Under 38 C.F.R. § 3.351(a)(2), SMC is payable to a Veteran by reason of the Veteran's spouse being in need of aid and attendance. 

Generally, the effective date of an award of compensation for an increased rating is the later of the date of receipt of the claim or the date entitlement arose.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2017).  Prior to March 24, 2015, VA recognizes formal and informal claims.  Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; claims are now required to be submitted on a specific claim form, prescribed by the Secretary, and available online or at the local RO. 

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) (2017).  An informal claim is a communication or action indicating intent to apply for one or more benefits.  38 C.F.R. § 3.155(a) (2017).  VA must look to all communications from a claimant that may be interpreted as applications or claims -formal and informal - for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits).

Under the applicable regulation, the effective date of an award of SMC based on the need for regular A&A for the Veteran's spouse is generally the date of receipt of the claim.  38 C.F.R. § 3.401(a)(3) (Spouse, additional compensation for aid and attendance:  Date of receipt of claim or date entitlement arose, whichever is later). However, this regulation also provides that when an award of disability compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, additional disability compensation payable to a veteran by reason of his spouse's need for aid and attendance shall also be awarded for any part of the award's retroactive period for which his spouse's entitlement to aid and attendance is established.  38 C.F.R. § 3.401(a)(3).

In a July 2013 rating decision, the AOJ granted the Veteran entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), increased his evaluation for service-connected PTSD to 70 percent, and established basic eligibility to Dependents' Educational Assistance (DEA), all effective from November 19, 2012.

The Veteran's own claim for SMC based on the need for regular A&A by another person or at the housebound rate was received by the AOJ on February 19, 2015.  It comprised of a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed and signed by F. C., M. D. in January 2015.  It was noted that the Veteran's spouse had just suffered a stroke and would be somewhat compromised.  Between both of their slow declines, the physician indicated that they clearly needed the help of a home health aide.

Thereafter, the Veteran's formal claim for SMC based on the need for regular aid and assistance for his spouse was received by the AOJ on March 19, 2015.  It comprised of a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed and signed by Y. F., M. D. in March 2015.  Dr. Y. F. diagnosed the Veteran's spouse with syncope, fall, and cerebrovascular accident with left arm weakness and forgetfulness.  The physician found that the Veteran's spouse needed assistance in bathing and tending to other hygiene needs, was not able to prepare her own meals, did not require nursing home care, required assistance of another person with daily activities of daily living, and unable to manage her own financial affairs.  Dr. Y. F. reported that the Veteran's spouse was hospitalized on February 27, 2015, at Stern Center for Rehabilitation, and required aids such as canes, braces, crutches, or the assistance of another person for locomotion. 

In a May 2015 rating decision, the AOJ granted entitlement to spousal aid and attendance, effective March 19, 2015, the date of claim. 

In February 2016, the Veteran disagreed with the rate and effective date assigned for entitlement to SMC based on aid and attendance for his spouse.  A private physician, F. C., M. D., indicated that the aid awarded for the Veteran's ill spouse to date was insufficient based on her needs.   

The appropriate effective date under the regulation is generally the date of receipt of claim or date entitlement arose, whichever is later, unless one of the above noted exceptions applies.  

One exception is when an informal claim for the benefit subsequently granted had previously been filed but not recognized by the AOJ.  Here, the Veteran's own SMC claim received on February 19, 2015, constitutes an informal communication received by VA that can be construed as a claim for SMC based on the need for regular aid and attendance for his spouse prior to the Veteran's formal claim was received on March 19, 2015.  38 C.F.R. § 3.1(p).  Evidence of record detailed that entitlement arose for the Veteran's spouse when she had a cerebrovascular accident necessitating the need for aid and attendance in January 2015.  Therefore, applying the law to the facts of this case, the assignment of an effective date of February 19, 2015, the date of the informal claim, for the award of SMC based on the need for regular aid and attendance for the Veteran's spouse is warranted.  However, no communication received prior to February 19, 2015, may be interpreted as an informal or formal claim of entitlement to SMC based on the need for regular A&A for the Veteran's spouse.

Another one of the exceptions is the language of the regulation indicating that when an award of disability compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, additional disability compensation payable to a veteran by reason of his spouse's need for aid and attendance will also be awarded for any part of the award's retroactive period for which his spouse's entitlement to aid and attendance is established.  38 C.F.R. § 3.401(a)(3). 

In Sharp v. Shinseki, 23 Vet. App. 267 (2009), the Court found, in an analogous situation, that there can be multiple rating decisions that establish entitlement to additional compensation for dependents, that entitlement to additional compensation for dependents is premised on any rating decision that establishes compensation at not less than 30 percent, and that the effective date for additional compensation for dependents is the same as the effective date of the rating decision that granted the entitlement, as long as proof of dependency is submitted within one year of the decision notice concerning the rating decision.  See also VA Fast Letter 11-38, Adding Dependents to a Retroactive Award (Dec. 19, 2011). 

In this case, the July 2013 rating decision established entitlement to a TDIU and DEA benefits effective November 19, 2012, with an accompanying notice letter dated that same month.  The Veteran submitted evidence of his spouse's need for aid and attendance in February and March 2015 showing she was hospitalized starting in January 2015 for a stroke or cerebrovascular accident, more than one year afterthe decision notice concerning the July 2013 rating decision.  Therefore, even considering the exception in 38 C.F.R. § 3.401(a)(3), as well as the Court's reasoning in Sharp, the February 19, 2015 effective date for the grant of entitlement to SMC based on his spouse's need for aid and attendance is proper. 

As there was no retroactive grant of benefits during the period of time that the Veteran's spouse needed aid and attendance, this provision of 38 C.F.R. 3.401(a)(3) is not applicable.  Rather, the benefit should be granted based on the date of receipt of claim or the date entitlement arose, whichever is later.  VA received the VA Forms 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, on February 19, 2015, and on March 19, 2015.  Evidence of record detailed that entitlement arose for the Veteran's spouse when she had a cerebrovascular accident necessitating the need for aid and attendance in January 2015.  Therefore, as February 19, 2015, is the earliest date that VA received an informal or formal claim for spousal aid and attendance, an earlier effective date cannot be granted on this basis.

Based on the foregoing discussion, the Board finds that the preponderance of the evidence is against the assignment of an effective date any earlier than February 19, 2015, for the grant of SMC benefits based on the need for regular aid and attendance of the Veteran's spouse, M. G.  

Finally, the Board notes that the Veteran has already been awarded entitlement to the maximum rate under 38 U.S.C. § 1115(1)(E) and 38 C.F.R. § 3.351(2) for SMC based on the need for A&A for his spouse.  As the law is dispositive of the issue on appeal, the claim of entitlement to a higher rate of SMC based on the need for a higher level of A&A for the Veteran's spouse must be denied because of the absence of legal merit or entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

An effective date of February 19, 2015, but no earlier, for the award of SMC based on the need for A&A for the Veteran's spouse, M. G., is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a higher rate of SMC based on the need for a higher level of A&A for the Veteran's spouse is denied.



REMAND

The Board's review of the record reveals that further development on the matter of entitlement to SMC based on the need for regular A&A or at the housebound rate is warranted.

The Veteran's claim for SMC based on the need for regular A&A by another person or at the housebound rate was received by the AOJ in February 2015.  It comprised of a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed and signed by F. C. M. D. in January 2015.  Dr. F. C. diagnosed the Veteran with diabetes mellitus, depression, widespread osteoarthritis, and diverticulitis/cholelithiasis, noting that musculoskeletal disabilities limited his function.  The physician found that the Veteran was not confined to bed, was able to feed himself, did not need assistance in bathing and tending to other hygiene needs, was not able to prepare his own meals, did not require nursing home care or medication management, and was able to manage his own financial affairs.  It was noted that ambulation was becoming less safe with affected balance, use of a walker, and sustained falls.  Dr. F. C. reported that the Veteran was hospitalized on January 21, 2015, at North Shore University Hospital, and required aids such as canes, braces, crutches, or the assistance of another person for locomotion for the distance of one block.   

As the February 2015 examination report did not discuss the effects of the Veteran's sole service-connected disability of PTSD, the Board finds that a remand is warranted in order to afford the Veteran a VA examination to address the specific criteria needed to establish entitlement to SMC based on the need for regular A&A or at the housebound rate.  Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the record before the Board contains insufficient medical information for evaluation purposes).

Finally, any updated VA treatment records should also obtained.  The record contains VA treatment records most recently dated in January 2017 from VA New York Harbor Healthcare System (HHS) as well as from Northport VA Medical Center (VAMC).  On remand, updated VA treatment records from those facilities dated from January 2017 should be obtained and associated with the electronic claims file.  See 38 U.S.C. § 5103A(c) (2012); 38 C.F.R. § 3.159(c)(2) (2017); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The AOJ must obtain updated treatment records pertaining to the Veteran's service-connected PTSD from New York HHS and Northport VAMC, to include all associated outpatient clinics, for the time period from January 2017 to the present and associate them with the record.

2.  Thereafter, schedule the Veteran for an appropriate VA aid and attendance examination.  The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the electronic claims file has been reviewed.  Any indicated diagnostic tests and studies must be accomplished.  All pertinent symptomatology and findings associated with the Veteran's service-connected PTSD must be reported in detail.

The examiner should specifically discuss whether the following factors are present as a result of the service-connected PTSD:  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 Veteran from hazards or dangers incident to his daily environment.

The examiner should also discuss whether the Veteran is bedridden, defined as required to remain in bed through the essential character of his service-connected PTSD.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).  The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim.  38 C.F.R. § 3.655 (2017).

3.  The AOJ must review the record to ensure that the foregoing requested development has been completed.  In particular, review any VA examination report or medical opinion to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

4.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated, taking into consideration all relevant evidence associated with the evidence of record since the January 2017 statement of the case.  If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).


______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs