Citation Nr: 1806213 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-45 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to May 2, 2006, for the award of special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1970. Unfortunately, the Veteran died in February 2017 during the pendency of this appeal. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In August 2014, the Board remanded this claim for further development, to include obtaining outstanding VA treatment records. In June 2016, as pertinent here, the Board denied entitlement to an effective date earlier than April 22, 2008, for the award of SMC based on the loss of use of the right eye with blindness, having only light perception, and granted an effective date of May 2, 2006, but not earlier, for the award of SMC based on the need for aid and attendance. In February 2017, the appellant notified VA of the Veteran's death, and in March 2017 the submitted request for substitution. The RO did not reply to the substitution request. The Board's June 2016 decision was appealed to the United States Court of Appeals for Veterans Claims (Court). In a an August 2017 Order, the Court granted the parties' Joint Motion for partial Remand (JMR), which requested that the Court vacate the part of the Board decision that denied entitlement to an effective date prior to May 2, 2006, for the award of SMC based on the need for aid and attendance. The appellant requested that the Court will not disturb the portion of the Board's decision that awarded an earlier effective date of May 2, 2006, for the award of SMC based on the need for aid and attendance, because that portion of the Board's decision was favorable to appellant. Furthermore, the appellant did not appeal the Board's denial of entitlement to an effective date earlier than April 22, 2008, for the award of SMC based on the loss of use of the right eye with blindness, having only light perception, and requested that the Court dismiss the appeal as to that portion of the Board's June 2016 decision. The Court substituted the appellant, the Veteran's surviving spouse, in his stead. The Board notes that in cases where the Veteran died after October 10, 2008, and there is already a substitute, the appeal is processed as normal, because the substitute stepped into the shoes of the deceased Veteran. See 38 C.F.R. § 3.1010(a). Additionally, in its June 2016 decision, the Board remanded the issues of entitlement to a certificate of eligibility for assistance in acquiring necessary special home adaptations and entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing, for the RO to issue a statement of the case (SOC) for these issues. A SOC was issued in October 2016; however, the Veteran did not perfect an appeal for these issues. Accordingly, the Board does not have jurisdiction over these issues. Therefore, the only issue remaining in appellate status is entitlement to an effective date prior to May 2, 2006, for the award of SMC based on the need for aid and attendance. FINDINGS OF FACT 1. The appellant is the Veteran's surviving spouse, who was properly substituted by the Court as the claimant to continue the Veteran's pending claim and appeal. 2. New and material evidence addressing the Veteran's vision loss was received within one year of the issuance of a November 2005 rating decision, which denied an increased rating for diabetic retinopathy, and therefore the October 22, 2004, claim upon which it arose remained pending. 3. The earliest date of claim for entitlement to SMC based on aid and attendance is October 22, 2004. 4. Entitlement to SMC based on aid and attendance arose on July 1, 2005. CONCLUSIONS OF LAW 1. The Veteran's surviving spouse is a proper substitute claimant in this case. 38 U.S.C. § 5121A (2012). 2. The criteria to establish an effective date of July 1, 2005, but no earlier, for the award of SMC based on the need of aid and attendance have been met. 38 U.S.C. §§ 1114(l), 1114(r)(2), 1502(b), 5107, 5110(a) (2012); 38 C.F.R. §§ 3.102, 3.351(b)-(c), 3.352(a), 3.400(o), 3.401(a)(1), 4.79 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Analysis The 2017 JMR found that the Board erred by failing to provide an adequate statement of reasons or bases addressing the reasonably raised issue of whether the November 2005 rating decision, which denied increased rating in excess of 60 percent for diabetic retinopathy remained pending under 38 C.F.R. § 3.156(b). Under that regulation, new and material evidence received within one year of VA notifying the claimant of a decision on that claim will serve to keep that claim pending. 38 C.F.R. § 3.156(b); see also 38 U.S.C. § 7105(b)(1) (giving claimants one year to initiate an appeal). When VA receives evidence during the one-year appeal period, it must evaluate that evidence and expressly determine whether it is new and material. Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed. Cir. 2011). In its June 2016 decision, the Board found that that the Veteran's entitlement to SMC based on the need for aid and attendance arose on July 1, 2005, but that the date of the Veteran's claim for that benefit was May 2, 2006. However, the Veteran was notified of the November 2005 rating decision, which increased his disability rating for service-connected retinopathy from 50 to 60 percent by a letter dated November 10, 2005. While the Board's June 2016 decision discussed this rating decision, it did not address whether the claim giving rise to that rating decision, which was filed on October 22, 2004, remained pending by way of 38 C.F.R. § 3.156(b), such that the date of the claim for SMC based on the need for aid and attendance resulting from the service-connected retinopathy is October 22, 2004. The Court ordered that on remand, the Board must address whether any documents submitted after the November 2005 rating decision constitute new and material evidence. Specifically, the JMR identified the following documents: (1) an April 12, 2006, VA optometry compensation and pension examination report noting that "visual function makes activities of daily living difficult"; (2) an August 18, 2006, statement in support of claim explaining that the Veteran's doctor informed him that he was "legally blind and should not be driving or doing anything that requires reading such as setting up [his] medications in the weekly dispenser,"; and (3) a September 11, 2006, VA VIST consultation record documenting that the Veteran "ha[d] trouble getting around his rural landscape in the country and [was] afraid of falling due to vision loss." Finally, the Court Order directed the Board to readjudicate the issue of entitlement to an effective date prior to May 2, 2006, for the award of SMC based on the need for aid and attendance, being mindful that a claimant need not expressly claim entitlement to SMC to trigger the Secretary's duty to adjudicate the matter. Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (citing Akles v. Derwinski, 1 Vet.App. 118, 121 (1991)). The effective date of an award of SMC, based on an original claim, is either the day following separation from active service or the date entitlement arose, provided the claim was received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). As noted above, the only issue that has to be resolved is whether the aforementioned identified evidence was new and material, which will result in the conclusion that the November 2005 rating decision was not final. In reviewing the above mentioned evidence, the Board finds that it is both "new" and "material" and it is undisputable that entitlement to the benefits at issue arose on July 1, 2005 (as noted by the Board in its July 2016 decision). Under 38 C.F.R. § 3.156(a), evidence is "new" if it is "existing evidence not previously submitted to agency decision makers." Evidence is "material" if it is "existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." Id. While Section 3.156(a) provides that the new and material evidence must raise a reasonable possibility of substantiating the claim, the Court has interpreted the language of 38 C.F.R. § 3.156(a) to create a low threshold, and it has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding" determinations of "new and material" evidence. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Here, the April 2006 VA examination report was "new," because it was created subsequent to the November 2005 decision, and plainly could not have been "previously submitted to agency decision makers." Further, the report was "material" to the Veteran's claim, because it related to an unestablished fact necessary to substantiate the claim by providing significantly different information from prior reports regarding his visual acuity rating, and supported his entitlement to SMC. Specifically, the November 2005 rating decision was based on the Veteran's left eye visual acuity of 20/400 and right eye visual acuity of 20/100, while the April 2006 examination report revealed findings of visual acuity of 20/400, bilaterally. This visual acuity would entitle the Veteran to a 90 percent disability rating, which was confirmed and relied upon by the RO in its May 2008 rating decision. Lastly, as noted above, although the November 2005 rating decision did not address entitlement to SMC based on the need for aid and attendance, the Court in Bradley specifically indicated (as noted by the Court in its August 2017 Order), VA was obligated to infer the existence of SMC benefits without the need for a separate claim, if evidence existed to support those benefits. Accordingly, since the Board finds that the April 2006 VA examination constitutes both "new" and "material" evidence, it must conclude that the November 2005 rating decision was not final. The November 2005 rating decision arose from the October 22, 2004 claim. As the November 2005 rating decision did not become final, the October 2004 claim remained pending. Moreover, it has already been established that entitlement to SMC based on aid and attendance arose on July 1, 2005. The later of those two dates is July 1, 2005. 38 C.F.R. § 3.400. Therefore, the Board assigns an effective date of July 1, 2005, but no earlier, for the award of SMC based on the need for aid and attendance. ORDER An effective date of July 1, 2005, but no earlier, for the grant of SMC based on the need of aid and attendance is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs