Citation Nr: 1802728 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-27 474A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than November 24, 2010 for the award of special monthly compensation based on the need for aid and attendance. REPRESENTATION Appellant represented by: Noah E. Yanich, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This case came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A June 2010 rating decision in part denied a total disability rating based on individual unemployability (TDIU). A January 2012 rating decision denied special monthly compensation (SMC) based on the need for aid and attendance and based on housebound status. In December 2014, the Veteran testified at a hearing before a Decision Review Officer at the RO. In October 2015, the Board remanded the case for further development and adjudication. The record reflects substantial compliance with the remand requests. See Dyment v. West, 13 Vet. App. 141 (1999). A July 2017 rating decision granted a TDIU effective February 27, 1998; SMC based on housebound criteria effective May 14, 2004; and SMC based on aid and attendance effective November 24, 2010. Notice of that rating decision informed the Veteran that the grants of TDIU and SMC based on aid and attendance were considered to fully satisfy the appeal as to those claims but the grant of SMC based on housebound criteria was a partial grant as an earlier effective date for the rant was deemed not warranted. The issue, the Veteran was informed, continued on appeal. The Board has, therefore, rephrased the issue as reflected on the title page of the decision to reflect that the issue, as it remains on appellate status, is the entitlement to an earlier effective date for the grant of SMC based on housebound status. FINDINGS OF FACT 1. VA received the Veteran's claim for SMC based on aid and attendance on November 18, 2010. 2. A November 24, 2014 letter from a nurse practitioner indicated that the Veteran's service-connected peripheral neuropathy of the upper and lower extremities would require the aid and attendance of a caregiver to assist with activities of daily living even without consideration of his nonservice-connected multiple sclerosis. 3. A July 2017 rating decision granted SMC based on aid and attendance effective November 24, 2010. 4. It was not factually ascertainable that the need for aid and attendance was warranted at any time within the one-year prior to November 24, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than November 24, 2010 for the award of SMC based on aid and attendance have not been met. 38 U.S.C. §§ 1155, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In this case, VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in March 2011. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Effective Date Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. The law also provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received by the VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)(b) (West 2012); 38 C.F.R. § 3.400(o)(1)(2) (2017). SMC at the aid and attendance rate is payable when a Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l) (West 2012); 38 C.F.R. § 3.350(b) (2017). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a 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; inability 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 him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350(b), 3.352(a) (2017). Bedridden is that condition, which, through its essential character, actually requires that a claimant remain in bed, is a proper basis for this determination. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a) (2017). Although the Veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, it is logical to infer there is a threshold requirement that at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). In this case, VA received the Veteran's claim for SMC based on aid and attendance on November 18, 2010. The Board notes that the claim also has date stamps of November 24, 2010 and December 13, 2010. While November 18, 2010 is the date of receipt of the claim, and is earlier than the current effective date of November 24, 2010, as will be seen below, the Veteran is not prejudiced by this error. The January 2012 rating decision denied SMC based on aid and attendance due in large part to an April 2011 VA examination report containing the opinion that the Veteran's service-connected disabilities do not prevent him from performing personal functions required in everyday living such as bathing, feeding himself, dressing, attending to wants of nature, adjusting prosthetic devices or protecting himself from hazards of his daily environment. Also of record was the report of an examination for housebound status or permanent need for regular aid and attendance from a nurse practitioner who indicated that the Veteran has multiple sclerosis, diabetes, and hypertension and that the multiple sclerosis prevented him from preparing his own meals and required minor assistance during showers and dressing. That report was received on November 24, 2010. The July 2017 rating decision granted SMC based on aid and attendance due in large part to a November 24, 2014 letter from the nurse practitioner who provided the earlier examination report who this time indicated that the Veteran's service-connected peripheral neuropathy of the upper and lower extremities would require the aid and attendance of a caregiver to assist with activities of daily living even without consideration of his nonservice-connected multiple sclerosis. The award was made effective November 24, 2010, noted as being the date that the Veteran's diabetes and complications increased to such an extent that they were determined to have been totally disabling, as well as the date that entitlement was first determined to have been due to symptoms of service-connected disorders and not to nonservice-connected multiple sclerosis. The Board notes that the evaluations of the Veteran's service-connected peripheral neuropathy of the upper and lower extremities were all increased effective November 24, 2014, the date of the nurse practitioner's letter. The question now is whether it was factually ascertainable that the Veteran's need for aid and attendance was warranted at any time within the one-year prior to the currently assigned effective date of November 24, 2010. None of the medical evidence of record at that time indicates a need for aid and attendance. A November 2009 VA dietetics consult note indicates that the Veteran was preparing his own meals, feeding himself, and doing the grocery shopping. A May 2010 VA neurology consult note shows motor strength of 5/5 in both the upper and lower extremities, decreased sensation in the left foot and from the mid-calf down on the right, and brisk reflexes throughout. An August 2010 VA occupational therapy consult note indicates that he was modified independent in all activities of daily living except for ambulation, which was limited to 25 feet with a rolling walker. The Board observes that a modified independent level indicates that a person needs an assistive device but not the assistance of another person. While just outside of the time period in question, an August 2009 VA examination report reflects the examiner's opinion that the Veteran's peripheral neuropathy was only moderate in severity and did not prevent him from doing his daily routine activities or sedentary jobs. In that regard, the nurse practitioner in her November 24, 2010 report acknowledged that only the multiple sclerosis prevented the Veteran from preparing his own meals and required minor assistance during showers and dressing. Even as of the April 2011 VA examination, the examiner opined that the Veteran's diabetes and associated disabilities including peripheral neuropathy did not result in an inability to dress or undress himself or keep himself ordinarily clean and presentable, feed himself, attend to the wants of nature, or protect himself from the hazards incident to his daily environment. Moreover, the Veteran reported at that time that he was able to perform all functions of self-care. The only other pertinent evidence in that time frame is the Veteran's May 2010 claim for a TDIU on which he indicated that his diabetes and peripheral neuropathy prevented him from securing or following any substantially gainful occupation involving physical labor and his posttraumatic stress disorder (PTSD) prevented him from obtaining employment involving mental effort. However, being unable to secure or follow a substantially gainful occupation does not equate to the need for aid and attendance. The Veteran did not submit any objective evidence indicating that his diabetes and peripheral neuropathy resulted in an inability to dress or undress himself or keep himself ordinarily clean and presentable, feed himself, attend to the wants of nature, or protect himself from the hazards incident to his daily environment. Moreover, at that time, his peripheral neuropathy of the lower extremities was only rated at 20 percent each and that of the upper extremities was only rated at 10 percent each. As noted above, the ratings for these disabilities were not increased until November 24, 2014, based on the nurse practitioner's letter dated that day. While the Veteran's PTSD was rated at 70 percent, there was no indication that his PTSD required the aid and attendance of another person. Given the evidence above, the Board finds that it was not factually ascertainable that the need for aid and attendance was warranted at any time within the one-year prior to November 24, 2010. It was not until the nurse practitioner's letter of November 24, 2014 that the record indicated that the Veteran's service-connected diabetic peripheral neuropathy of the upper and lower extremities required the aid and attendance of a caregiver to assist with activities of daily living even without consideration of his nonservice-connected multiple sclerosis. That would be the date entitlement arose. Thus, in this case, the Veteran already has been assigned a more favorable effective date than shown by the record and an even earlier effective date is not warranted. Lastly, the fact that the Veteran's claim for SMC based on aid and attendance was received on November 18, 2010 has no bearing on this case as the effective date is the later of the date of receipt of the claim or the date entitlement arose. In this case, the proper effective date is the date entitlement arose, which is the date of the nurse practitioner's November 24, 2014 letter. It appears that the RO resolved the benefit of the doubt in using the November 24, 2010 date of receipt of the nurse practitioner's examination report as the date that the Veteran's diabetic peripheral neuropathy alone required the aid and attendance of another person. In conclusion, an effective date earlier than November 24, 2010 for the award of SMC based on the need for aid and attendance is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date earlier than November 24, 2010 for the award of SMC based on the need for aid and attendance is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs