Citation Nr: 1750476	
Decision Date: 11/07/17    Archive Date: 11/17/17

DOCKET NO.  14-35 314	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to an effective date earlier than January 19, 2012, for the grant of a 100 percent disability rating for service-connected amyotrophic lateral sclerosis.

2.  Entitlement to an effective date earlier than January 19, 2012, for the grant of entitlement to special monthly compensation (SMC) based on aid and attendance criteria.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Hubers, Counsel


INTRODUCTION

The Veteran served on active duty from June 1980 to June 1983, from December 1990 to June 1991, in May 1992, and from March 2003 to March 2004.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Veteran testified at an August 2017 Board hearing held at the RO.  A transcript of the hearing is associated with the claims file.

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.  In a March 2009 rating decision, the RO granted service connection for amyotrophic lateral sclerosis (ALS) and assigned an initial evaluation of 60 percent effective July 11, 2008.

2.  The Veteran did not appeal the March 2009 rating decision and it became final.

3.  The Veteran's medical records from 2010, a January 2011 VA examination, and a November 2010 application for automobile or other conveyance and adaptive equipment implicitly raised the issue of entitlement to a higher rating for the Veteran's service-connected ALS.

4.  A July 2011 Rating Decision granted an 80 percent evaluation for the Veteran's ALS.  Within one year of that rating decision, the schedule of ratings applicable to ALS was amended to provide for a 100 percent rating and the Veteran filed a notice of disagreement seeking a 100 percent rating as early as 2008.

5.  An increase in severity of the Veteran's ALS was first ascertainable on March 9, 2010, within one year of his November 2010 formal application for increased benefits.

6.  Upon implementation of this decision, the Veteran will have a 100 percent schedular rating for ALS effective from March 9, 2010, as well as other disabilities at least 60 percent disabling at that time.


CONCLUSIONS OF LAW

1.  The March 2009 rating decision that assigned an initial 60 percent evaluation for ALS is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2016).

2.  The criteria for a 100 percent rating for service-connected amyotrophic lateral sclerosis were met as of March 9, 2010, but no sooner.  See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.159, 3.400, 4.124a, Diagnostic Code 8017 (2016); 38 C.F.R. §§ 3.157, 3.400(o)(2) (2010); 76 Fed.Reg. 78823.

3.  The criteria for an effective date of March 9, 2010, but no earlier, for the grant of entitlement to SMC based on the need for regular aid and attendance have been met.  38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. §§ 3.350, 3.352 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's VA files.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, infra.   

I.  Earlier Effective Date:  100 percent rating for ALS

The Veteran claims entitlement to a 100 percent rating for his service-connected amyotrophic lateral sclerosis (ALS) effective from June 16, 2008.  See July 2012 Notice of Disagreement.

The Veteran was initially granted service connection for ALS in a March 2009 rating decision.  He was awarded a 60 percent disability rating effective July 2008, his date of claim.  The Veteran did not appeal that rating decision, so it became final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2016).  In addition, at this procedural juncture, there can be no freestanding earlier effective date claim with respect to the initial grant of service connection.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).

Therefore, to the extent that the Veteran asserts an earlier effective date for the grant of service connection for ALS or that he should have been assigned a higher initial disability rating, the appeal is denied.  He cannot, now, disagree with the 2009 rating decision, and while he has generally indicated disagreement with the 60 percent rating that was assigned at that time, he had not raised a claim that the decision was clearly and unmistakably erroneous.  Therefore, although he has requested a 2008 date for the higher rating, due to the finality of the 2009 rating decision, that cannot be done.

Thereafter, the RO issued a July 2011 rating decision granting an increase to 80 percent for the service-connected ALS.  Subsequent to that rating decision, there was a change in the diagnostic criteria with respect to ALS, such that a 100 percent rating is mandatory for ALS.  The effective date of the change in the regulation is January 19, 2012.  A March 2012 rating decision increased the Veteran's evaluation for ALS to 100 percent effective January 19, 2012, based on that change.  A May 2012 rating decision confirmed and continued that rating.

The Veteran filed a Notice of Disagreement in July 2012, less than one year after the July 2011 rating decision, in which he argued that the 100 percent rating should be retroactive to June 2008.  The Board interprets the Notice of Disagreement as including disagreement with the July 2011 rating decision granting an increase to 80 percent, rather than 100 percent, for his ALS.  See 38 C.F.R. § 20.202; Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (emphasizing that pro se filings must be read liberally); see also Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009) (holding that "the veteran's efforts to raise issues on direct appeal should be liberally construed").  Although he stated he was disagreeing with the 2012 rating decision, this correspondence was received within one year of the 2011 decision, expressing his belief of entitlement to a higher rating at an earlier date, and it should be liberally construed in the manner most favorable to him.  Consequently, the rating decision on appeal is the July 2011 rating decision which was a ruling on a claim of entitlement to an increased rating.

General Principles: Earlier Effective Dates

Under 38 U.S.C.A. § 5110(a), the effective date of an increase in a veteran's disability compensation '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(b)(2) provides an exception to this general rule:  "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."

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997).

VA determined in the July 2011 rating decision that the Veteran's VA treatment records (possibly in combination with the Veteran's November 2010 application for automobile or adaptive equipment due to an increase in the severity of his ALS) constituted an informal claim of entitlement to an increased rating for his ALS.  That finding is consistent with the evidence and with the laws and regulations in effect at the time and will not be disturbed.  38 C.F.R. § 3.157 (b)(1) (2010) (providing that a report of examination or hospitalization may constitute an informal claim).

The Board will first address the date that an increase in the severity of the Veteran's ALS occurred (rather than the degree of the increase).  Notably, the increase to 80 percent was based on evidence of right foot drop (which was not present when the RO issued the rating decision granting service connection and assigning an initial rating).  See July 2011 Rating Decision.  There is a March 2010 VA treatment note that indicates the Veteran had "significant drop foot on R and decreased swing on R."  See March 2010 VA Progress Note (indicating reduction from 3+ to "1-/0" out of 5 in ankle dorsiflexion strength and noting testing with WalkAide Ministim provided some ability to dorsiflex).  Therefore, the Board finds that the earliest indication of an increase in the severity of the Veteran's ALS documented in the VA treatment records is the progress note dated March 9, 2010.  That treatment record came within one year of his November 2010 application indicating an intent to seek additional benefits based on increased symptoms.  Consequently, the effective date for the Veteran's increased rating should be March 9, 2010.  38 C.F.R. § 3.400(o)(2).

The remaining question is the appropriate rating to be assigned for the increase.  Under the old regulations, the RO determined that the foot drop warranted an 80 percent rating.  This rating did not take into account other manifestations of the Veteran's ALS that began to appear shortly after that initial report of right foot drop, including manifestations in both lower extremities and in the Veteran's upper extremities.  See, e.g., April 2012 VA Examination (noting pharynx and/or larynx and/or swallowing conditions, persistent daytime hypersomnolence, erectile dysfunction, bilateral lower extremity weakness, bilateral upper extremity reflex abnormalities, and depression, all of which were attributable to ALS).  Therefore, a full rating of the ALS would require evaluation of each of these manifestations separately.  Without going into unnecessary detail, the Board finds as a factual matter that evaluation of these individual manifestations would best be rated by an analogy to other similarly progressive neurological disorders which are typically rated as 100 percent and take a more holistic view of the combined effects of the various manifestations of the neurological disorder.  See 38 C.F.R. § 4.124a, DCs 8005, 8105, and 8106; 38 C.F.R. § 4.120 (evaluations by comparison).

In addition, as noted above, the regulations were amended effective January 19, 2012.  The final rule provided for a mandatory 100 percent disability rating for ALS which, the proposed rule noted was consistent with the ratings for similarly progressive neurological disorders.  While the effective date of an increase based on liberalizing law is generally the effective date of the change in law, see 38 C.F.R. § 3.114, the final rule specified that the amended DC 8017 should be applied to an application for benefits that, among other things, "is appealed to the Board of Veterans' Appeals on or after January 19, 2012."  76 Fed.Reg. 78823 (December 20, 2011).  Here, the July 2011 rating decision was in the appeal period at the time of the change in the law and, as discussed, the Veteran did timely appeal that decision to the Board.  Therefore, he had an application for benefits filed prior to the change in law that was appealed to the Board after the change in law (in 2014, in fact).  Therefore, the terms of the final rule require the Board to apply the new DC 8017 to this claim.  The appropriate rating for the Veteran's ALS is 100 percent.  See 38 C.F.R. § 4.124a, DC 8017 (2016); 76 Fed.Reg. 78823 (December 20, 2011).

The greater weight of the evidence is in favor of granting the Veteran an earlier effective date for his 100 percent rating for ALS.  The Board grants entitlement to an effective date of March 9, 2010, but no earlier, for the assignment of a 100 percent disability rating for his service-connected ALS.

II.  Earlier Effective Date:  Aid and Attendance Benefits

The Veteran has argued that he is entitled to an effective date earlier than January 19, 2012, for SMC based on the need for aid and attendance, specifically, SMC pursuant to 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i).

The criteria for the Veteran's SMC (subsection (s) SMC also referred to as "housebound rate") "is payable where the veteran has a single service-connected disability rated as 100 percent" and meets other criteria.  38 C.F.R. § 3.350(i).  The Veteran first met these criteria as of March 9, 2010.  Therefore, he is entitled to SMC payable at the subsection (s) rate (the housebound rate) effective March 9, 2010.

Accordingly, the Board grants entitlement to an effective date of March 9, 2010, but no earlier, for the grant of SMC based on the need for aid and attendance (at the subsection (s) level).

III.  Duties to Notify and Assist

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).  Thus, the Board need not discuss any potential issues in this regard. The Veteran has not alleged any deficiencies in the VA examinations or opinions of record.

Further, the Veteran has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010).  In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board.


ORDER

Entitlement to an effective date of March 9, 2010, but no earlier, for the grant of a 100 percent disability rating for service-connected amyotrophic lateral sclerosis is granted, subject to the laws and regulations governing the award of monetary benefits.

Entitlement to an effective date of March 9, 2010, but no earlier, for the grant of entitlement to special monthly compensation (SMC) based on aid and attendance criteria is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs