Citation Nr: 1804433	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  17-30 213	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to an effective date earlier than January 3, 2017, for the award of a 60 percent rating for urinary incontinence associated with degenerative arthritic changes, L5-S1.  

2.  Entitlement to an effective date earlier than April 4, 2016, for the award of a higher level of special monthly compensation (SMC) based on the need for aid and attendance.  


REPRESENTATION

Veteran represented by:  Rudy S. Melson, Accredited Agent	


ATTORNEY FOR THE BOARD

Melissa Barbee, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from December 1971 to December 1973.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

This case was previously before the Board in September 2017, at which time it was remanded for additional development.  As the actions specified in the remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

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.  It is factually ascertainable that the Veteran's urinary incontinence associated with degenerative arthritic changes, L5-S1 was 60 percent disabling on December 12, 2016, but not earlier.   

2.  It is not factually ascertainable that the Veteran met the criteria for a higher level of SMC based on aid and attendance prior to April 4, 2016.    


CONCLUSIONS OF LAW

1.  An effective date of December 12, 2016, but not earlier, for the award of a 60 percent rating for urinary incontinence associated with degenerative arthritic changes, L5-S1, is warranted.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400, 4.115a, Diagnostic Code 7517 (2017).

2.  An effective date earlier than April 4, 2016, for the award of a higher level of SMC based on aid and attendance, is not warranted.  38 U.S.C. §§ 1114, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.350, 3.352, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and to Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159.  As neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist, the Board will proceed with appellate review.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

II. Earlier Effective Date for the Award of an Increased Rating

The Veteran is seeking an effective date earlier than January 3, 2017, for the award of a 60 percent rating for urinary incontinence associated with degenerative arthritic changes, L5-S1.  In particular, the Veteran contends that the 60 percent rating should date back to the grant of service connection for urinary incontinence, effective October 14, 2015.

Legal Criteria

The method of determining the effective date of an increased rating is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o).  The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof."  38 U.S.C. § 5110(a).  This statutory provision is implemented by regulation which 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 the rule applies, however, under circumstances where 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.   In that regard, the law provides that the effective date of the award 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, otherwise the date of receipt of the claim.  38 U.S.C. § 5110 (b)(2)(C)(3).  See 38 C.F.R. § 3.400(o)(2).  The phrase "otherwise, date of receipt of the claim" applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating.  Harper v. Brown, 10 Vet. App. 125, 126-27 (1997).  Moreover, the term "increase" as used in 38 U.S.C. § 5110 and 38 C.F.R § 3.400 means an increase to the next disability level.  See Hazan v. Gober, 10 Vet. App. 511, 519 (1997).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form.  Prior to March 24, 2015, VA recognized formal and informal claims.  The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155.  The amended regulations apply only to claims filed on or after March 24, 2015.  Because this claim was initiated after that date, the amended regulations apply.

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).  
  

Background and Analysis

A December 2016 Board decision granted the Veteran service connection for urinary incontinence.  Subsequently, in a December 2016 rating decision, the RO assigned an initial disability rating of 40 percent effective October 14, 2015.  The record shows that the Veteran did not appeal this rating, but instead initiated a formal claim for a higher rating for his service-connected urinary incontinence on January 3, 2017.  In a February 2017 rating decision, the RO increased the rating to 60 percent effective January 3, 2017, the date of the claim.  The Veteran filed a notice of disagreement (NOD) in March 2017 requesting an earlier effective date for the award of the 60 percent rating.

A review of the record reveals that there were no other pending, unadjudicated claims for a higher rating for urinary incontinence prior to January 3, 2017.  Thus, the Board has determined that January 3, 2017 is the date of receipt of the higher rating claim for urinary incontinence.

On the question of when entitlement arose, a February 2017 VA Compensation and Pension examination provides the earliest medical evidence of record indicating that the Veteran met the criteria for a 60 percent rating under 38 C.F.R. § 4.115a, Diagnostic Code 7517.  The rating criteria at 60 percent require that the Veteran      use an appliance or wear absorbent materials which must be changed more than four times per day.  On examination, it was revealed that the Veteran met both of these requirements. 

VA regulations provide that the effective date will be the date of receipt of the claim (January 2017) or the date entitlement arose (February 2017), whichever is later.  38 C.F.R. § 3.400(o)(1).  Although the later of the two dates is February 2017, the Board accepts that the RO assigned the earlier effective date of January 3, 2017 (the date of receipt of the claim), for the award of the 60 percent rating.  

Generally, the effective date can be no earlier than the date of receipt of the claim for an increased rating.  However, under the exception noted above, an earlier effective date may be granted on the date of a factually ascertainable increase in symptoms, if such increase occurred within the one-year period preceding the date of the claim.  38 U.S.C. § 5100(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. at 521.  

In this regard, the Board notes a lay statement by the Veteran's wife dated December 12, 2016 attesting that the Veteran wears Depends for his urinary incontinence, which must be changed "at least five to six times per day for his comfort."  The Veteran's wife is competent to report on factual matters of which she has firsthand knowledge, and the Board finds her statement credible as it is consistent with her prior statements.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  Based on this statement, the Board finds that it is factually ascertainable that an increase in the Veteran's urinary incontinence had occurred as of December 12, 2016.      

The Board has also considered the contentions made by the Veteran's representative that the effective date should be October 14, 2015, which is the effective date of the grant of service connection.  First, the Board notes that the law only permits the Board to consider the evidence of record within the one-year period preceding the date of the claim.  The Board has reviewed the pertinent medical and lay evidence, however, the evidence does not support the representative's contention that the Veteran's symptoms rose to the level of severity contemplated by the rating criteria at 60 percent during the timeframe in question.  A February 2016 VA treatment note remarks that the Veteran suffers from "nocturnal urinary incontinence that has worsened over the past five months.  He has been wearing adult briefs because of this."  A February 2016 VA Compensation and Pension examination found that the Veteran's urinary incontinence "requires absorbent material which much be changed [two to four] times per day."  A March 2016 statement by the Veteran's wife remarks, "[the Veteran] has on numerous occasions soiled his pants and wet the bed. . . He seems to have no control of feeling that he has to urinate.  This seems to be happening more and more as his condition worsens."  The Board finds that, while the Veteran's urinary incontinence may in fact have been worsening during the one-year period preceding the date of the claim, there is no evidence that his symptoms manifested to the level described under the rating criteria for a 60 percent rating at any date prior to December 12, 2016.

Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board has determined that the Veteran is eligible for a 60 percent rating for urinary incontinence as of December 12, 2016, and entitlement to an effective date of December 12, 2016 is granted.  However, an even earlier date is not warranted as it is not factually ascertainable that the increase occurred during the one-year period preceding the claim at any time prior to December 12, 2016.  To find otherwise would be to engage in speculation.       
   
III. Earlier Effective Date for the Award of SMC

The Veteran is currently in receipt of SMC based on the need for aid and attendance, effective April 4, 2016.  He is also in receipt of a higher rate of SMC, at the "intermediate" level, based on the criteria listed in 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3), effective April 4, 2016.  The Veteran is seeking an effective date earlier than April 4, 2016 for the award of a higher rate of SMC based on the need for aid and attendance.  Specifically, he contends that the award of SMC should date back to the grant of total disability rating based on individual unemployability (TDIU), effective May 17, 2013.  

Legal Criteria

SMC is an additional level of compensation paid to veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities.  It reflects recognition by VA that certain disabilities, either alone or in combination, have an impact on a veteran beyond the impairment of earning capacity, which is central to the Rating Schedule.  38 C.F.R. § 4.1.  Because it considers the interactive effects of multiple disabilities, a determination of the correct SMC award level requires layering of different entitlements.  Basic levels of SMC are listed at 38 U.S.C. § 1114(k).  Additional levels of SMC are provided in 38 U.S.C. § 1114(l) through (t).  Only the additional levels pertinent to the Veteran's claim are discussed herein.     

SMC is payable at the (l) rate if a veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance of another person.  38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).  

The following will be accorded consideration in determining the need for regular aid and attendance: inability of 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 of claimant 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 the claimant from hazards or dangers incident to his daily environment.  38 C.F.R. § 3.352(a).  

At least one of the above disabling factors needs to be met to receive SMC based on required aid and attendance.  See Turco v. Brown, 9 Vet. App. 222, 224 (1996); see also 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 the 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).

With respect to the higher level of SMC awarded to the Veteran, SMC at the (p) rate may be awarded - among other reasons - for the presence of additional disabilities, not involved in other SMC determinations, which are rated as 50 percent disabling.  Such an award creates "entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. § 1114."  38 C.F.R. § 3.350(f)(3).  Put another way, the (p) rate affords "a half-step" increase in the level of compensation.  The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114(l) through (n).  38 C.F.R. § 3.350(f)(3).  

With respect to the effective dates of awards of SMC, the Board notes that claims for SMC are by definition a type of increased (i.e., "special") compensation.  Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings.

In general, the effective date of an award of an increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application thereof.  38 U.S.C. § 5110(a).  An exception to this rule applies, however, under circumstances where 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.  In that regard, the law provides that the effective date of the award "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 otherwise, date of receipt of the claim."  38 U.S.C. § 5110(b)(2)(C)(3); 38 C.F.R. § 3.400(o)(2).

Background and Analysis 

The Veteran filed a formal claim for SMC on January 3, 2017.  A January 2017 rating decision granted entitlement to SMC at the (l) level based on aid and attendance, effective April 4, 2016, which is the date that the Veteran's service-connected disabilities met the schedular requirements to trigger eligibility for SMC.  A February 2017 rating decision granted entitlement to SMC at the higher (p) level, effective January 4, 2013.  The Veteran filed an NOD in March 2017 requesting an earlier effective date for the award of the higher level of SMC.  A May 2017 rating decision revised the effective date of the higher level of SMC assigned in the February 2017 rating decision back to the original effective date of April 4, 2016, due to an error.  The Veteran filed his substantive appeal of the decision in May 2017.  

A careful review of the record shows that there were no pending, unadjudicated claims for SMC based on aid and attendance prior to January 3, 2017.  Thus, the Board has determined that January 3, 2017 is the date of receipt of the claim.     

Next, the question is when the Veteran's eligibility for SMC was factually ascertainable.  See Hazan v. Gober, 10 Vet. App. at 521.  To make this determination, the Board is permitted to review the evidence of record within the one-year period preceding the date of the claim.  After a review of the pertinent medical and lay evidence, the Board has determined that the Veteran's eligibility for SMC based on aid and attendance became factually ascertainable on April 4, 2016. 
 
First, the Board notes that a November 2016 VA treatment record states that the Veteran is reliant on his wife for bathing, dressing, feeding, taking medication, transportation, and managing finances and medical appointments, due to his service-connected disabilities.  Although there is earlier evidence that the Veteran relies on the use of a walker, and occasionally a wheelchair, for mobility, prior to this date, there is no other medical or lay evidence of record to indicate that the Veteran was so significantly disabled as to be in need of regular aid and attendance by another person.  

Next, the Board notes that the February 2017 rating decision awarded the Veteran a higher level of SMC based on aid and attendance on account of being service-connected for additional independent disabilities with ratings of least 50 percent.  See 38 U.S.C. §§ 1114(l), (p); 38 C.F.R. § 3.350(f)(3).  The RO assigned the effective date based on when the Veteran became statutorily eligible for a higher level of SMC, which was April 4, 2016.  On that date, the Veteran was granted increased ratings of 60 percent for radiculopathy of the right lower extremity and the left lower extremity, thus making him eligible for SMC based on aid and attendance at the higher (p) level.  See 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f)(3).      

The Board has no statutory or regulatory authority to assign an earlier effective date for an award of a higher level of SMC unless there is a service-connected disability which meets the requirements specified at 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3).  As the Veteran did not have any service-connected disability rated at least 50 percent disabling prior to April 4, 2016, and was therefore not statutorily eligible for the higher rate of SMC prior to that date, the Board cannot assign an effective date earlier than April 4, 2016.  

The Board acknowledges the Veteran's representative's contentions that the effective date for the higher level of SMC should be May 17, 2013, which is the effective date assigned to the Veteran's grant of TDIU.  However, the Board notes that prior to April 4, 2016, the Veteran did not meet the statutory requirements for the higher level of SMC as he did not have any service-connected disabilities rated at least 50 percent disabling.  See 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f)(3).  Therefore, even assuming a claim for SMC had been filed prior to January 3, 2017, as a matter of law, there would be no basis for the award of SMC at the (p) level prior to April 4, 2016.  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 until November 2016.  

Accordingly, the claim for entitlement to an effective date prior to April 4, 2016, for the award of a higher level 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).
    

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ORDER

Entitlement to an effective date of December 12, 2016, but not earlier, for the award of a 60 percent rating for urinary incontinence associated with degenerative arthritic changes, L5-S1, is granted.

Entitlement to an effective date earlier than April 4, 2016, for the award of a higher level of SMC based on the need for aid and attendance, is denied.  





____________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs