Citation Nr: 1752853 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-42 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to July 2, 2004 for the award of special monthly compensation (SMC) based on aid and attendance, for accrued purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Yuskaitis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1977. He died in January 2005, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The August 2009 rating decision implemented the Board's June 2009 decision granting SMC based on aid and attendance, effective July 2, 2004. In her October 2010 substantive appeal (via VA Form 9), the appellant requested a Board hearing. In an October 2010 correspondence, the appellant withdrew her Board hearing request. Thus, the Board finds the Veteran to have withdrawn her request to testify. 38 C.F.R. § 20.704 (2017). FINDINGS OF FACT 1. VA received a claim for entitlement to SMC based on aid and attendance in December 2004. 2. The earliest factually ascertainable date for SMC based on aid and attendance is July 2, 2004. CONCLUSION OF LAW The criteria for an effective date prior to July 2, 2004 for special monthly compensation based on aid and attendance have not been met. 38 U.S.C. §§ 1114, 5110 (2012); 38 C.F.R. §§ 3.350, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). The Board finds VA satisfied its duty to assist the appellant in the development of this claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In an April 2012 correspondence, the appellant stated that the Veteran was treated by multiple providers at the Cleveland Clinic and she believed that these records were not considered. Review of the record reveals that the RO wrote to the Cleveland Clinic, as well as to each physician identified by the appellant individually, requesting copies of treatment records and/or reports. In November 2013, VA received responses from the Cleveland Clinic stating that records requests for deceased patients must be accompanied by a court entry or order appointing a fiduciary, executor, or administer. In a December 4, 2013 correspondence, the RO notified the appellant that they were unable to obtain the requested records and advised the appellant to contact the Cleveland Clinic to secure these records directly. The appellant did not respond to the December 2013 letter. Moreover, the Board notes that the record does indeed contain extensive records from the Cleveland Clinic. The Board finds that an additional remand to request any additional records would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Therefore, the Board concludes that VA has made reasonable efforts to obtain all records relevant to the appellant's claim. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Earlier Effective Date The appellant seeks an effective date earlier than July 2, 2004 for the award of special monthly compensation (SMC) based on aid and attendance. Specifically, the appellant contends that the proper effective date for the award of SMC based on aid and attendance is August 1998, the month that the Veteran had his liver transplant. The appellant asserts that the Veteran was battling with rejection of his organ(s) and the medication hindered his ability to perform everyday activities. As discussed herein, the Board finds that July 2, 2004 is the proper date for the award of SMC based on aid and attendance. As SMC provides additional compensation, it is analogous to an award of increased rating for service-connected disability. The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to that rule applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. 5110 (b)(2); 38 C.F.R. 3.400 (o)(1), (2); Harper v. Brown, 10 Vet. App. 125 (1997). SMC is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114 (l) (2012); 38 C.F.R. § 3.350 (b) (2017). SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as the result of service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Bedridden means that the Veteran is actually required to remain in bed. 38 C.F.R. § 3.352 (a). Voluntarily taking to bed or being prescribed bed rest for the greater or lesser part of the day to promote convalescence or cure is insufficient. Id. Several factors should be considered, including: (1) inability to dress or undress or to keep self ordinarily clean and presentable, (2) frequent need for adjustment of special prosthetic or orthopedic appliances that cannot be done without aid due to the particular disability (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.), (3) inability to feed self through loss of upper extremity coordination or extreme weakness, (4) inability of to attend to the wants of nature, (5) incapacity, physical or mental, requiring care or assistance on a regular basis to protect from hazards or dangers incident to his daily environment, and (6) being bedridden. Id. At least one of the above disabling factors needs to be met to receive SMC based on required aid and attendance. Turco v. Brown, 9 Vet. App. 222 (1996); 38 C.F.R. § 3.352 (a). The particular personal functions that the Veteran is unable to perform should be considered in connection with his condition as a whole. 38 C.F.R. § 3.352 (a). It is only necessary that evidence establish the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. The performance of the necessary aid and attendance service by a relative or other member of the Veteran's household will not prevent a favorable determination. 38 C.F.R. § 3.352 (c). In this matter, the Veteran raised a claim for SMC specifically based on aid and attendance or housebound status in a December 2004 correspondence. Entitlement to SMC based on the need for regular aid and attendance was finally established in a June 2009 Board decision and an effective date of July 2, 2004 was assigned. An August 2009 rating decision implemented the grant of SMC based on aid and attendance effective July 2, 2004, which is the date the Veteran's service-connected disabilities were reasonably found to prevent him from keeping himself clean and presentable or to avoid the hazards or dangers incident to his daily environment, when he was ready for dialysis treatment. The Board has carefully reviewed the record in order to determine if there was an earlier pending claim for SMC based on aid and attendance, prior to December 2004 or potentially October 2004, but has not identified such a claim (either formally or informally), nor has the appellant pointed to any communication evidencing an intent to file a claim for SMC for aid and attendance that would serve as a basis for an effective date earlier than July 2, 2004. See Servello v. Derwinski, 3 Vet. App. 196 (1992) (holding that the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). While the Veteran submitted a claim for SMC in October 2004, and was granted SMC for housebound status, effective from August 14, 2004, such claim did not serve as the basis for the grant of aid and attendance. The effective date of August 14, 2004 was based on the increase to 100 percent for his service connected renal dysfunction. The Board concludes that a formal or informal claim for SMC for aid and attendance was not received prior to the correspondence received in December 2004, or arguably in October 2004. Significantly, the Board has found no evidence that the need for regular aid and attendance was "factually ascertainable" prior to July 2, 2004. The Board notes that a factual need for aid and attendance must be based upon service-connected disabilities. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). At the time of his death, the Veteran was service connected for renal dysfunction, rated as 100 percent disabling; Hepatitis C with cirrhosis, status post liver transplant, rated as 100 percent disabling; postoperative laminectomy for spinal stenosis, rated as 10 percent disabling; and hypertension, rated as 10 percent disabling. A review of the medical treatment records associated with the claims file document that the Veteran was able to manage his own care prior to July 2, 2004. Indeed, private treatment records from October 2002 by Dr. S.P., MD detailed that the Veteran was able to climb a flight of stairs or walk up a hill and participate in moderate recreational activities such as golf, bowling, dancing, double tennis, or throwing a baseball or football. In April 2003, the Veteran was instructed on the care and management of self-administered interferon injections. VA medical treatment records note that the Veteran's chronic Hepatitis C was treated with interferon alone from April 2003 to October 2003 and viral load decreased by half. A December 2003 VA urgent care triage note recorded that the Veteran was ambulatory, he came from his home, and he was not accompanied by anyone. The Board finds that July 2, 2004 is the first "factually ascertainable" increase in disability occurring within the one-year period preceding the December 2004 date of receipt of a claim for SMC. 38 C.F.R. 3.400 (o)(2) (2017). VA medical center outpatient records beginning on July 2, 2004 indicate that the Veteran was end-stage liver diagnosis now with chronic rejection and was scheduled to start hemodialysis treatment, which began shortly thereafter. Indeed, the Veteran himself confirmed in an October 2004 correspondence that he had been on dialysis for the last "couple months." The Veteran further stated that his condition slowly deteriorated, he no longer left the house unaccompanied and he needed help dressing and taking his medication. In her October 2010 substantive appeal (via VA Form 9), the appellant contends that the Veteran was in need of aid and attendance since his liver transplant in August 1998. Beginning in January 2002, she stated the ascites caused him constant pain; his stomach was extended to due the ascites making it difficult for him to breath; and the fluid buildup from his ascites made it hard for him to take a bath or dress himself without help. The Veteran was suffering from anemia in 2003 which caused him constant weakness and shortness of breath, making it hard for the Veteran to bath and dress himself on a daily basis. The Veteran could not climb up and down the stairs without being out of breath. He also had to get several blood transfusions because of his end-stage renal disease. The appellant also said that the Veteran developed type II diabetes due to his hypertension and the Veteran needed help checking his sugar and giving him his medication daily. Finally, the appellant asserted the Veteran was in constant need of aid and attendance from the first day he returned home from the hospital after his liver transplant. After his liver transplant, the Veteran was not able to cook, clean, bathe, take his medications, dress himself, etc. The appellant argues that the Veteran was not able to take care of himself due to his Hepatitis C, cirrhosis, renal failure ascites, back pain from spinal stenosis, anemia, diabetes, hypertension, sleeping problem, prostate problem, and variceal bleeding. As such, the appellant believed her husband should have received aid and attendance beginning on August 27, 1998, or the date of his liver transplant. The Board acknowledges the appellant's contentions that the Veteran was entitled SMC based on aid and attendance starting on the date of his liver transplant in August 1998. However, the Board notes that, prior to March 16, 2000, the Veteran did not meet the statutory requirements for SMC as he did not have a single service-connected disability. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Therefore, even assuming a claim for SMC had been filed prior to July 2, 2004, as a matter of law, there would be no basis for the award of SMC prior to March 16, 2000. Moreover, the probative medical evidence of record does not support the contention that the Veteran required continuous aid and assistance in the form of cooking, cleaning, bathing, taking his medications, and dressing himself since service connection was established on March 16, 2000. Indeed, the medical evidence of record details that the Veteran was physically active at least into October 2002 and the Veteran was ambulatory and managing his self-care in December 2003. Finally, the Board notes that the appellant's contentions involve non-service connected disabilities for which SMC based on aid and attendance are not for consideration. Accordingly, the claim for entitlement to an effective date prior to July 2, 2004 for the award of SMC based on aid and attendance is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An effective date prior to July 2, 2004 for the award of SMC based on aid and attendance is denied. ____________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs