Citation Nr: 1710914	
Decision Date: 04/05/17    Archive Date: 04/19/17

DOCKET NO.  13-34 105	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an effective date earlier than September 9, 2011, for special monthly compensation (SMC), to include under 38 U.S.C. § 1114(s) and for being so helpless as to be in need of regular aid and attendance, for substitution purposes.

2.  Entitlement to accrued benefits based on money owed the Veteran at the time of his death. 


REPRESENTATION

Appellant represented by:	Benjamin Krause, Attorney



ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran had active service from November 1940 to September 1945.  He was a prisoner-of-war (POW) in Germany from March 1943 to April 1945.  The Veteran died in December 2011.  The appellant has been substituted as a claimant.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating actions of Department of Veterans Affairs (VA) Regional Offices (ROs).  In January and June 2013, the Board remanded the accrued benefits issue.  In a February 2013 letter, the RO recognized the appellant as the substitute claimant in the place of the Veteran pursuant to 38 U.S.C.A. § 5121A.  Accordingly, the appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death.

In January 2013, the Board referred the issue of entitlement to compensation under 38 U.S.C. § 1151.  However, the claim appears to have been based on a statement and letter from the appellant's governor received by VA in January 2012, subsequent to the Veteran's death in December 2011.  As a claim filed subsequent to the Veteran's death could not have been pending at the time of his death, the matter was referred in error, and is not properly before the Board.  See 38 U.S.C.A. §§ 5121(a); 5121A.  

In July 2014, the Board denied the matters on appeal, and the appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  

In a March 2016 Memorandum Decision, the Court noted a June 3, 2013, Board decision denying other claims intertwined with the instant appeal, and that "[t]he appellant assert[ed] that she submitted a motion for reconsideration of the Board's June 3, 2013, Board decision on August 9, 2013, but that the Board never acted on her motion," and therefore the June 2013 Board decision was not final.  The Court cited its holding in Ratliff v. Shinseki, 26 Vet. App. 356, 360 (2013) "that, when a written expression of disagreement with a Board decision is filed at the RO during the 120-day period to file a NOA [notice of appeal], it abates finality of the Board decision for purposes of appealing to the Court until, as applicable here, 'the Board chairman determines the status of the document, that is, whether it is considered a motion for Board reconsideration or not, and notifies the claimant of its determination.'"  The Court further noted that the "the Board [had conceded] that it did not provide notice to the appellant as to whether her August 9, 2013, letter constituted a motion for reconsideration."  

As "the Board did not comply with the procedures outlined in Ratliff, supra, the Court agree[d] that the Board's July 24, 2014, adjudication of the appellant's claims was premature."  "[A]s VA ha[d] yet to address the appellant's potential disagreement with the June 3, 2013, decision regarding her substituted claims and those claims may [have affected] her accrued-benefits claim as well as the date of the [Veteran's] eligibility for SMC, the Court [found] that the resolution of the appellant's disagreement with the Board's June 3, 2013, decision [was] inextricably intertwined with the issues decided by the Board in the July 24, 2014, decision."  The Court therefore "vacate[d] the Board's [July 2014] decision and remand[ed] the matters for reconsideration consistent with [its] decision."

Subsequently, in a February 2017 letter to the appellant, the Board acknowledged that the appellant had filed a motion for reconsideration of the Board's June 3, 2013, Board decision, addressed the merits of the appellant's motion, and denied it.  The June 3, 2013, Board decision is therefore final.  See 38 U.S.C.A. §§ 7102, 7103; Ratliff, 26 Vet. App. at 360; Rosler v. Derwinski, 1 Vet. App. 241, 249.

As the June 3, 2013, Board decision is final and the Board no longer has jurisdiction over the issues therein, it will again address the issues raised in this appeal.  This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  Prior to September 9, 2011, the Veteran had no single service-connected disability rated as total and either had additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the service-connected disability rated total and involving different anatomical segments or bodily systems, or was permanently housebound by reason of service-connected disability or disabilities.  

2.  Since the time of the July 2007 final Board denial of SMC benefits for aid and attendance, and prior to the September 9, 2011, effective date of the award of SMC at the level provided for under 38 U.S.C. 1114(s), no communication or action indicating an intent to apply for SMC, including for being so helpless as to be in need of regular aid and attendance, was received by VA.

3.  No periodic VA monetary benefit to which the Veteran was entitled at death under existing ratings and decisions are and due and unpaid.



CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than September 9, 2011, for SMC, to include under 38 U.S.C. § 1114(s) and for being so helpless as to be in need of regular aid and attendance, for substitution purposes, have not been met.  38 U.S.C.A. §§ 1114(s), (l), 5110, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.157(b), 3.155(a), 3.350(b), (i), 3.352(a), 3.400(o)(1), 20.1100 (2010, 2016).

2.  The criteria for accrued benefits based on money owed the Veteran at the time of his death have not been met.  38 U.S.C.A. §§ 5121, 5121A (West 2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004).  
The filing of a notice of disagreement with the effective date of the appellant's award of SMC under 38 U.S.C. 1114(s) did not trigger additional 38 U.S.C.A. § 5103(a) notice requirements.  Therefore, any defect as to notice regarding that issue is not prejudicial.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008).  Regarding the Veteran's accrued benefits claim, as discussed below, entitlement to the benefit claimed cannot be established as a matter of law, and therefore no further action is required pursuant to the duties to notify and to assist.  See 38 C.F.R. § 3.159(b)(3)(ii); VAOPGCPREC 5-2004; Valiao v. Principi, 17 Vet. App. 229, 232 (2003).  Moreover, the appellant was provided notice regarding her accrued benefits claim in a February 2012 letter.

As to VA's duty to assist, all necessary development has been accomplished.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records, VA medical records, identified private treatment records, and letters from private physicians have been obtained.  

Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the appellant in adjudicating this appeal.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

II.  An effective date earlier than September 8, 2011, for SMC

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.A. § 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.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998).

Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim.  An informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).

Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen: (1) A report of examination or hospitalization by VA or uniformed services, where such report relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission; (2) Evidence from a private physician or layman, with the date of receipt of such evidence accepted when the evidence is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits; (3) When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by VA of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals.  38 C.F.R. § 3.157(b) (2010). 

Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where a veteran has a single service-connected disability rated as total and either (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).  This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).

For purposes of satisfying the requirements of 38 U.S.C. § 1114(s), a rating for a total disability rating for individual unemployability due to service-connected disabilities (TDIU) may be considered a total rating, and any disabilities that do not form the basis for the TDIU may satisfy the requirement for additional service-connected disability or disabilities independently ratable at 60 percent or more under Section 1114(s).  See Bradley v. Peake, 22 Vet. App. 280, 291-93 (2008).

However, multiple disabilities, even if able to be combined and considered as a single disability for purposes of 38 C.F.R. § 4.16(a), do not meet the criteria for "a service-connected disability rated as total" for SMC under 38 U.S.C. § 1114(s).  Id. at 290-91. 

Special monthly compensation provided by 38 U.S.C. 1114(l) is payable for being so helpless as to be in need of regular aid and attendance.  38 C.F.R. § 3.350(b).  The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 U.S.C. § 3.352(a).  38 C.F.R. § 3.350(b)(3).

Under 38 U.S.C. § 3.352(a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; inability to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; and 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.  It is not required that all of these disabling conditions 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 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 a veteran is so helpless as to be in need of regular aid and attendance are based on the actual requirement of personal assistance from others.  38 U.S.C.A. § 3.352(a).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

In this case, in a July 2007 decision, the Board denied the Veteran's claim of entitlement to SMC based on the need for aid and attendance.  The decision became final.  See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. 

In a November 2012 rating decision, the RO granted entitlement to SMC under 38 U.S.C. 1114(s) and 38 C.F.R. § 3.350(i), effective September 9, 2011.  The basis of the award was that, effective September 9, 2011, service connection for congestive heart failure and arteriosclerotic heart disease was granted with a 100 percent rating assigned, and his additional service-connected disabilities, separate and distinct from his heart disability, were independently ratable at 60 percent or more.  See 38 C.F.R. § 3.350(i).

Following the RO's recognition of the appellant as the substitute claimant in place of the Veteran under 38 U.S.C.A. § 5121A, in an August 2013 statement, the appellant expressed disagreement with the effective date of the SMC award. 

As reflected in her August 2013 notice of disagreement, December 2013 substantive appeal, and various other written statements, the appellant contends that the Veteran had been requesting, and was entitled to, SMC for aid and attendance for years.  In her December 2013 substantive appeal, she noted that to qualify for aid and attendance benefits the Veteran needed to have regular daily care with his dressing, food, medicine, bathing, and other personal needs, and asserted that the Veteran's doctors and medical staff supervised his care constantly.  

However, in this case, an effective date earlier than September 9, 2011, for any SMC awarded is not warranted.  

The record does not reflect, and the appellant has not contended, that, prior to September 9, 2011, the Veteran had any single service-connected disability rated as total.  Prior to that date the Veteran's service-connected disabilities were right arm gunshot wound residuals, rated 30 percent; right arm brachial aneurysm, rated 20 percent; right lower extremity frozen feet residuals, rated 10 percent; left lower extremity frozen feet residuals, rated 10 percent; hypertension, rated 10 percent; right arm fracture, rated 10 percent; laparotomy scar, rated noncompensable (0 percent); and localized skin rash/eczema secondary to laparotomy scar, rated noncompensable.

Initially, the Board notes that the Veteran's right arm gunshot wound residuals, right arm brachial aneurysm, and right arm fracture, are not "separate and distinct" disabilities "involving different anatomical segments or bodily systems"; each disability is of the right arm, which resulted from an in-service gunshot to that arm.  Even if one such disability was considered to be rated as total, the Veteran's remaining, separate and distinct disabilities of right and left frozen foot residuals, hypertension, and scar disabilities, would have been independently ratable at less than 60 percent.  Furthermore, there is no suggestion in the record, or assertion by the appellant, that any single disability of right lower extremity frozen feet residuals, left lower extremity frozen feet residuals, or hypertension, each rated 10 percent, or either scar disability, each rated noncompensable, by itself would have rendered the Veteran unemployable; as indicated in an October 1981 VA examination report, the record reflects that the Veteran worked post-service successfully as a postal worker and eventually a supervisor at the Post Office from 1958 to 1973, when he retried following diagnosis and treatment of prostate cancer.  

Moreover, the record does not suggest, and the appellant has not asserted, that, prior to September 9, 2011, the Veteran was substantially confined as a direct result of these service-connected disabilities to his dwelling and the immediate premises, with reasonable certainty that the disability or disabilities and resultant confinement would continue throughout his lifetime. 

Thus, an earlier effective date for SMC under 38 U.S.C. 1114(s) is not warranted.

Also, the record does not reflect that, since the time of the July 2007 Board denial of SMC benefits, and prior to the September 9, 2011, effective date of the award of SMC at the level provided under 38 U.S.C. 1114(s), any communication or action indicating an intent to apply for SMC, including for being so helpless as to be in need of regular aid and attendance, which adequately identified any such benefit being sought, was received by VA.  While the Board recognizes the appellant's contentions that the Veteran had been requesting aid and attendance for years, again, a claim for SMC based on the need for aid and attendance was adjudicated in a July 2007 Board decision, and the record does not reflect any claim, formal or informal, pending since then, prior to September 9, 2011.  

The Board notes that in December 2009 the Veteran resubmitted a letter, dated in November 2006, from his private physician, Dr. B.  The letter asserts that the Veteran had "hypertension, chronic kidney disease, and chronic edema," and that the Veteran "require[d] constant care, multiple medications, and frequent doctor visits to control these conditions."  However, this letter does not qualify as an informal claim for increased benefits or an informal claim to reopen as evidence from a private physician showing the reasonable probability of entitlement to benefits under 38 C.F.R. § 3.157(b).  This letter had been of record at the time of the Board's July 2007 denial of the Veteran's claim for SMC based on the need for aid and attendance.  Also, of "hypertension, chronic kidney disease, and chronic edema," which "require[d] constant care," the only disability for which the Veteran was service-connected during his life was hypertension, for which he received a disability rating of only 10 percent.

Furthermore, even assuming a claim for SMC for aid and attendance had been filed between the July 2007 Board denial of the benefit and September 9, 2011, the evidence does not establish that the criteria for SMC for aid and attendance had been met at any time during that period.  

While in the appellant's December 2013 substantive appeal, she noted that to qualify for aid and attendance benefits the Veteran needed to have had regular daily care with his dressing, food, medicine, bathing, and other personal needs, and that his doctors and medical staff supervised his care constantly, she did not specify which disability or disabilities was the cause of any such necessary care, whether they were service-connected, or how they necessitated such care.  Also, any such claim for aid and attendance was not supported by further objective evidence.

Again, the letter from Dr. B., dated in November 2006, asserts that the Veteran had "hypertension, chronic kidney disease, and chronic edema," and that the Veteran "require[d] constant care, multiple medications, and frequent doctor visits to control these conditions."  There is no indication in the statement of what qualified as "constant care," and again, of "hypertension, chronic kidney disease, and chronic edema," which "require[d] constant care," the only disability for which the Veteran was service-connected during his life was hypertension, for which he received a disability rating of only 10 percent.

Also, in December 2012, the appellant resubmitted a letter from a private physician, Dr. L., dated in April 1998.  The letter indicates that the Veteran had been under Dr. L.'s care, and that he was presently disabled due to a service-connected gunshot wound to the right arm resulting in an aneurysm, and that the Veteran had also sustained frozen feet while in service.  Dr. L. stated that the Veteran's wife cared for the Veteran on a daily basis, that the Veteran could not attend to many activities of daily living due to his disability, and that his wife assured his personal needs were met such as bathing, dressing, etc.  However, regarding the Veteran's disabling conditions, Dr. L.'s descriptions of the Veteran's conditions requiring constant care are not consistent with those described by Dr. B., who discussed altogether different physical conditions as being the reasons that the Veteran could not attend to many activities of daily living.  Also, Dr. L., while describing the Veteran's in-service gunshot wound, right arm aneurism, and frozen feet, incurred during the Veteran's service from November 1940 to September 1945, did not describe what the current residuals of such in-service injuries were, what type of impairment they caused, or how they prevented the Veteran from attending to personal needs such as bathing or dressing.  

The conflicting nature and unclear explanations contained in the letters of Drs. B. and L. are particularly pertinent in this case given that they were already of record and considered by the Board at the time of its July 2007 decision denying the Veteran's claim of entitlement to SMC based on the need for aid and attendance.   In this regard, the Board notes that its July 2007 denial of the Veteran's claim was based in large part on the Board's finding that the Veteran repeatedly and explicitly refused to undergo VA examination to attempt to substantiate his claim by clarifying whether he required aid and attendance and, if so, for what disabilities, even though such examination had been ordered by the Board in a May 2006 remand.  Under these circumstances particularly, the Board finds that the letters of Dr. B. and Dr. L. would lack probative weight to substantiate any pending claim for SMC for aid and attendance.

Finally, the appellant submitted a letter from her governor, submitted in January 2012 and dated in February 2005, remarking that it had been brought to the governor's attention that the appellant provided 24-hour care for the Veteran due to his disabilities.  However, this statement is clearly a mere recitation of what the Veteran and appellant had asserted in their correspondence to the governor, and does not contain any first-hand personal knowledge of the Veteran's treatment.  It is therefore not probative of the issue here. 

Accordingly, an effective date earlier than September 9, 2011, for SMC, to include under 38 U.S.C. § 1114(s) and for being so helpless as to be in need of regular aid and attendance, for substitution purposes, must be 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.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56.

III. Accrued Benefits

Under 38 U.S.C.A. § 5121(a), periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of such individual be paid to the veteran's spouse. 

If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.  38 U.S.C.A. § 5121A(a)(1).

As noted in the introduction above, the appellant has been substituted as the claimant for the purposes of processing any pending claim of the Veteran's at the time of his death to completion.

The record does not reflect, and the appellant has not contended, that any periodic VA monetary benefit to which the Veteran was entitled at death under existing ratings and decisions are due and unpaid.  Rather, she has argued in this, and in previous appeals, that the Veteran was entitled to VA benefits at the time of his death based on evidence demonstrating that a benefit not yet granted should be granted; in this appeal, an effective date earlier than September 9, 2011, for SMC, to include under 38 U.S.C. § 1114(s) and for being so helpless as to be in need of regular aid and attendance.

Therefore, as the Board is denying such earlier effective date for substitution purposes, the appellant's claim for accrued benefits must also fail.  See Sabonis, 6 Vet. App. at 430.  Accordingly, accrued benefits based on money owed the Veteran at the time of his death must be denied.


ORDER

An effective date earlier than September 9, 2011, for SMC, to include under 38 U.S.C. § 1114(s) and for being so helpless as to be in need of regular aid and attendance, is denied.

Accrued benefits based on monetary benefits owed the Veteran at the time of his death are denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs