Citation Nr: 1803666	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  16-18 951A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi



THE ISSUES

1. Entitlement to an earlier effective date for the grant of service connection for atrial septal defect with supraventricular arrhythmia (a heart disability), prior to August 11, 2011.

2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance and/or at the housebound rate.



ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel





INTRODUCTION

The Veteran had active duty service from February 1965 to February 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 
 
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).


FINDINGS OF FACT

1. Service connection was previously denied for a heart disability by a May 20, 1969 rating decision. The Veteran was informed of this decision, including his right to appeal and did not file a timely appeal.

2. Service connection for a heart disability was later denied by an October 2004 rating decision because the Veteran had not submitted new and material evidence sufficient to reopen his claim. The Veteran was informed of this decision, including his right to appeal and did not file a timely appeal. 

3. Service connection for a heart disability was again denied by a February 2009 rating decision because the Veteran had not submitted new and material evidence sufficient to reopen his claim. 

4. Service connection for a heart disability remained denied by a January 2010 rating decision because the Veteran had still not submitted new and material evidence sufficient to reopen his claim. The Veteran was informed of this decision, including his right to appeal and did not file a timely appeal.

5. On August 11, 2011, the Veteran submitted a statement to, in pertinent part, reopen his claim of service connection for a heart disability. 

6. Service connection for a heart disability was eventually granted by a December 2012 rating decision, effective August 11, 2011, with an evaluation of 10 percent. The Veteran was informed of this decision, and he filed an appeal. A statement of the case was issued on May 12, 2015. 

7. The Veteran's 10 percent evaluation for a heart disability was increased to 30 percent by a May 2015 rating decision, effective August 11, 2011. The Veteran was informed of this decision, and he filed a timely appeal in July 2015, disagreeing only with the effective date, stating the "effective date should be the date of the initial claim, 05/20/1969." 

8. The record does not reflect the Veteran had an unadjudicated increased evaluation or service connection claim for his heart disability prior to August 11, 2011.

9. The Veteran's award of a total disability rating based on individual unemployability (TDIU), effective August 11, 2011, is predicated on his service-connected disorders, but he does not have additional service-connected disability or disabilities independently rated as 60 percent disabling.

10. The Veteran has not been permanently or substantially confined to his home as a result of his service-connected disabilities.

11. Due to his service-connected disabilities, including multiple residuals of a stroke, it is at least as likely as not that the Veteran is unable to meet most of his daily personal needs without regular aid and attendance from another individual.


CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than August 11, 2011, for service connection for atrial septal defect with supraventricular arrhythmia (a heart disability) are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017).

2. The criteria for entitlement to SMC at the housebound rate have not been met. 38 U.S.C. §§ 1114(s), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.350, 3.352 (2017).

3. With resolution of reasonable doubt in the Veteran's favor, the criteria for SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§1114(l), 1502(b) (2012); 38 C.F.R. §§ 3.159, 3.350, 3.352.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. 

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Earlier effective date 

The Veteran contends that he is entitled to an effective date earlier than August 11, 2011 for the grant of service connection for atrial septal defect with supraventricular arrhythmia (a heart disability). Specifically, he asserts that the effective date should be the date of his original rating decision, May 20, 1969. The Board notes that the Veteran appears to believe that service connection was granted on that date, but with a noncompensable evaluation. However, a review of that rating decision reveals that his claim was denied in full, as his heart disability was deemed to be congenital and an anomaly. 

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. 

Here, the Board observes that service connection was previously denied for a heart disability by way of a May 20, 1969 rating decision. The Veteran was informed of this decision, including his right to appeal and did not timely appeal. Moreover, the record does not reflect that new and material evidence was physically or constructively of record within the one year appeal period of that decision. See 38 C.F.R. § 3.156(b) (2017); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Notably, there is nothing in the record to suggest a new claim of service connection was raised until the Veteran attempted to reopen his claim and was denied by way of an October 2004 rating decision. As discussed above, the Veteran made several subsequent attempts to reopen his claim of service connection for a heart disability, but his claims remained denied and he did not timely appeal. Thus, these denials are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). A new appeal was filed on August 11, 2011, and his claim of service connection was ultimately granted, effective that date, and his evaluation is now 30 percent. 

In as much as the original May 20, 1969 denial of service connection for a heart disability is final, the effective date for the establishment of service connection for a heart disability can be no earlier than the most recent successful and timely claim to reopen.

Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155(a). In the present case, there is simply nothing in the record to suggest an effective date prior to August 11, 2011 is warranted. Again, the Board notes that the Veteran made several attempts to reopen his claim, beginning around 2004, which were denied and he did not timely appeal any of these decisions. Therefore, those prior denials are final and an effective date of August 11, 2011 is proper, as that is the date on which the Veteran successfully filed a new claim to reopen his appeal. 

Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned as the date of claim for which it was successfully reopened. The Board reiterates that the Veteran's initial claim filed soon after his discharge from service was in fact denied by way of the May 20, 1969 rating decision, and service connection was not established until August 11, 2011, the date on which the claim was deemed to be successfully reopened. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to August 11, 2011, for the grant of service connection a heart disability. 

Accordingly, the preponderance of the evidence is against the claim for an effective date prior to August 11, 2011 for the award of service connection for such disability. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b).

Special monthly compensation (SMC) based on the need for aid and attendance and/or at the housebound rate

The Veteran seeks entitlement to SMC based on the need for aid and attendance and/or at the housebound rate.

SMC is payable when a Veteran has a single service-connected disability rated as 100 percent and either (a) has additional service-connected disability or disabilities independently rated as 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems or (b) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The "housebound" requirement is met when a Veteran is substantially confined as a direct result of service-connected disabilities to his 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 lifetime. 

A factual need for aid and attendance will be accorded consideration by the following criteria: (1) inability of claimant to dress or undress self, or to keep self ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; (3) inability of claimant to feed self through loss of coordination of upper extremities or through extreme weakness; (4) inability to attend to the wants of nature; or (5) 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. See 38 C.F.R. § 3.352(a).

As relevant to this appeal, SMC is payable if a veteran has a single service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A "single service-connected disability rated as total" under 38 U.S.C. § 1114(s) is not limited to cases where a 100 percent rating has been assigned via the application of one or more diagnostic codes in the rating schedule; rather, entitlement to TDIU may serve as the "total" rating for the purposes of special monthly compensation at the (s) rate if the TDIU is predicated upon a single disability. See Bradley, 22 Vet. App. 280.

Here, a TDIU has been assigned for a his combined service connected disabilities, effective August 11, 2011.  This included the service connection for multiple stroke residuals as of that date. Service connection also remains in effect for the mental condition (70 percent disabling); a heart disability (30 percent disabling); left sided weakness and dexterity to include left arm pain (20 percent); left lower extremity weakness (20 percent); cerebrovascular accident (stroke) associated with heart disability (10 percent); and dysphagia associated with stroke (noncompensable). Therefore, the Veteran does not have an additional service-connected disability or disabilities independently rated as 60 percent separate and distinct from the TDIU award.

As a result, the Board next considers whether the Veteran has been permanently or substantially confined to his home as a result of his service-connected disabilities to warrant SMC at the housebound rate or whether the Veteran has been so helpless to warrant SMC based on the need for aid and attendance.

The Board notes that the Veteran's has received VA treatment for a number of his health problems, of which only some are service-connected. A September 2014 physical therapy note shows that the Veteran complained of poor endurance and mild weakness. The therapist noted that the Veteran is independent with all of his activities of daily living. 

The Veteran was afforded a VA examination based upon his claim for SMC in April 2015. The Veteran reported that he uses a cane to ambulate and requires the regular assistance of his wife in getting to the bathroom because his knees are too stiff. The Veteran also reported that he is able to shave and brush his teeth independently, but his wife monitors him at times. He stated that he needs his wife's assistance to dress himself. The Veteran indicated that his wife retired last year so that she could be available to assist him with meal preparation and to manage the proper administration of his daily medications. The Veteran claimed to be able to feed himself and eat independently. The Veteran stated that most days he either watches TV or reads throughout the day and that his wife performs all household chores, including mowing the lawn and grocery shopping. He then stated that he passed out while attempting to mow the lawn two years ago and since then was instructed by his doctor to no longer perform this task. The Veteran stated that he also stopped driving his vehicle around the same time and is totally dependent upon his wife to transport him to medical appointments. The Veteran claimed that in a typical day he eats lunch that his wife prepares and then rests in the afternoon, and that his wife also prepares dinner before assisting him with getting dressed into bedtime clothing before retiring in the evening. 

The examiner noted that while the Veteran needs a cane to walk, he does not need the assistance of another to ambulate and is unrestricted in his ability to leave the home. Function of the Veteran's upper extremities was characterized as abnormal, with mild or moderate impairment causing some difficulty in the ability to attend to his personal needs. Function of the Veteran's lower extremities was also characterized as abnormal, with limitation of motion and muscle weakness. The examiner also provided the following remarks: 

While the [September 2014 VA therapy note] documents mild deficits secondary to [heart disability] and independent with [activities of daily living], at the time of the C&P exam, Veteran required cane to ambulate and gait was slow and antalgic with the use of the cane and PT note also is incongruent with [a prior C&P examination]. Veteran also exhibited weakness of the left upper and left lower extremities. Records also document multiple hyaluronic knee injections secondary to chronic [left knee pain/degenerative joint disease] without relief of symptoms. While the Veteran's [heart disability] does not meet the standard for Aid and Attendance assistance, the Veteran's most limiting conditions are residuals secondary to [heart disability] of left hemiparesis with ongoing balance issues and memory loss as well as psychological issues ... Based on this examiner's history and exam, Veteran would currently meet the standard for aid and attendance assistance.

The evidence of record demonstrates that the Veteran does not have additional service-connected disability or disabilities independently rated as 60 percent disabling and the April 2015 examiner clearly noted that the Veteran is not restricted in his ability to leave his house. Thus, given the above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to SMC on the basis of being housebound under 38 U.S.C. §§ 1114(s). 

Turning to the claim for SMC based on the need for aid and attendance, the medical evidence of record demonstrates that the Veteran is severely limited or unable to care for himself and requires the assistance of his wife to attend to many of his daily functions and protect himself from the hazards and dangers of his daily environment. Although the April 2015 VA examiner noted that the Veteran's service-connected heart disability alone did not meet the standard required for aid and assistance, the examiner concluded that the combined effect of his remaining service-connected disabilities, namely his mental condition and weakness associated with his upper and lower extremities contributed to his ongoing balance problems and dizziness and opined that the requirements of aid and assistance are met. 

For the foregoing reasons, with resolution of reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's service-connected disabilities cause him to be in need of the regular aid and attendance of another person. As noted above, the Veteran need not have all of the disabling conditions mentioned by 38 C.F.R. § 3.352, and furthermore, the evidence must show only that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a). Consequently, giving the Veteran the benefit of the doubt, the criteria for SMC based on the need for the regular aid and attendance of another person have been met. See 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a).


ORDER

Entitlement to an earlier effective date for the grant of service connection for atrial septal defect with supraventricular arrhythmia (a heart disability), prior to August 11, 2011 is denied.

Entitlement to SMC at the housebound rate is denied.

Entitlement to SMC based on the need for aid and attendance is granted, subject to the laws and regulations governing payment of monetary benefits. 


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs