Citation Nr: 18147770 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-31 188A DATE: November 6, 2018 ORDER Entitlement to an earlier effective date for service connected bipolar disorder with schizophrenia, paranoid type features is denied. Entitlement to special monthly compensation (SMC) based on aid and attendance is denied. FINDINGS OF FACT 1. A February 1990 rating decision, which denied service connection for acute depression, became final as new and material evidence or a notice of disagreement was not received within one year of the notice of the decision. 2. The next communication regarding a claim for bipolar disorder was received November 28, 2012, the current effective date for the grant of service connection for his bipolar disorder. 3. The Veteran does not meet the schedular requirements for SMC housebound benefits and does not need SMC housebound benefits as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The February 1990 rating decision denying service connection for acute depression is final. 38 U.S.C.§ 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 2. The criteria for an effective date prior to November 28, 2012, for the grant of service connection for bipolar disorder, with schizophrenia, paranoid type features have not been met. 38 U.S.C. § 1155, 5110; 38 C.F.R. § 3.155, 3.400(a). 3. The criteria for SMC by reason of the need for regular aid and attendance of another person or by being housebound have not been met. 38 U.S.C. §§ 1114, 1502, 1521, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from September 1974 to January 1976. In an August 2018 correspondence, the Veteran withdrew his request for a Board hearing. Therefore, the Board considers the hearing request withdrawn at this time. See 38 C.F.R. § 20.704(e). 1. Entitlement to an earlier effective date for service connected bipolar disorder with schizophrenia, paranoid type features In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. 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. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2014); Norris v. West, 12 Vet. App. 413, 421 (1999). The Veteran filed a claim for service connection for acute depression in February 1990. His claim was denied in an April 1990 rating decision and the Veteran did not file a notice of disagreement nor did he submit new and material evidence to support his claim. Therefore, the denial of service connection for acute depression became final. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(a), 20.202. Then in November 2012, the Veteran filed to reopen his claim for service connection for bipolar disorder, which was granted with a 100 percent evaluation in an October 2014 rating decision. The Veteran filed a notice of disagreement in December 2014 stating that he wanted his service connected benefits for bipolar disorder to be granted retroactive from the date the VA rated him as permanently total disabled which was December 1, 2006. According to the October 29, 2014 rating decision, the Veteran filed his claim for service connection on November 28, 2012, which was the date applied when assigning an effective date. As there is no evidence to the contrary, the Board agrees that this is the date of the Veteran’s formal claim. The date of receipt of the claim having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to November 28, 2012. A review of the record fails to show that the RO received a claim or informal written communication indicative of the Veteran’s desire to seek service connection for a bipolar condition. The Board finds that there is no legal basis for the grant of an earlier effective date in this case and the currently assigned November 28, 2012 is the earliest effective date possible in this case. In reaching this conclusion, the Board does acknowledge the Veteran’s statement that his effective date should be December 1, 2006, the date the VA found him permanently disabled and granted non-service connected pension for his bipolar disorder. However, as stated above, the Veteran applied for service connection for bipolar disorder on November 28, 2012 and under 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b), the earliest effective day is the date of receipt of the claim or the date entitlement arose, whichever is the later. Accordingly, entitlement to an earlier effective date for service connected bipolar disorder with schizophrenia, paranoid type features is denied. 2. Entitlement to special monthly compensation based on aid and attendance The Veteran asserts that he is entitled to SMC based on aid and attendance as a result of his service-connected disabilities, specifically, his bipolar disorder. In addition to any benefits already received, a veteran may also be entitled to SMC benefits where there is an established need for regular aid and attendance based on service-connected disabilities. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Requiring aid and attendance means that a person is helplessness or so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under 38 C.F.R. § 3.352(a). See also 38 C.F.R. § 3.351(b), (c). The criteria to be considered in establishing a factual need for aid and attendance include: • The 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); • 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. See 38 C.F.R. § 3.352 (a). Being bedridden is a proper basis for the determination. “Bedridden” is that condition which, through its essential character, actually requires that the claimant remain in bed. 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. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In this case, the evidence does not indicate that SMC is warranted based on the need for aid and attendance. Throughout the period on appeal, the Veteran has reported some difficulty with independence in activities such as cooking, shaving, and managing his medication and financial affairs. However, during a February 2015 examination for housebound status or permanent need for regular aid, the Veteran reported that he was able to feed himself, perform all ADLs except shaving, and is able to drive to the 24-hour fitness facility to use the treadmill 5-6 times a week. Additionally, in a letter dated June 2015, the Veteran’s psychiatrist indicated that he was fully able to manage his personal affairs to include his financial affairs. Further, the February 2015 examination revealed that the Veteran was able to leave his home for close distances. The Board acknowledges the statements of the Veteran and his wife that he is entitled to aid and assistance because his wife must help him with preparing meals shaving, and shopping. Even giving the Veteran the benefit of the doubt, the Veteran’s bipolar disorder does not make him housebound. As indicated above, the Veteran continues to be somewhat independent in his activities of daily living and he is able to leave his home to travel close distances. The critical requirement in 38 U.S.C. § 1114 (l) is that the aid and attendance must be necessary as the result of a service-connected disability or disabilities. The Board understands that the Veteran has a total disability rating for his bipolar disorder and a 50 percent disability rating for his service connected bilateral pes planus. However, as the evidence does not show that these service-connected disabilities necessitate aid and attendance, the Board must deny his claim. Housebound If not in need of regular aid and attendance, a veteran may also be entitled to special monthly compensation for housebound benefits if, in addition to having a single permanent disability rated 100 percent disabling under the VA Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 of this chapter), the Veteran either: • Has an additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems; or • Is “permanently housebound” by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). While the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran’s remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that combined ratings to satisfy the second requirement but not the first). Moreover, in order to be considered “permanently housebound,” the requirement that the Veteran be “substantially confined” to the home or its immediate premises is broadly construed and met when the Veteran is simply unable to leave the home to earn a living, as opposed to requiring that the Veteran be unable to leave the house at all. 38 U.S.C. § 1114 (s). The Board determines that the requirements for SMC based on housebound status have not been met. The Veteran is service-connected for bipolar disorder with schizophrenia, rated at 100 percent disabling and bilateral pes planus (claimed as flat feet) rated as 50 percent disabling. In order to be eligible for SMC housebound, the Veteran must be assigned a total disability rating with another 60 percent rating. See 38 U.S.C. § 1114(s). While the Veteran receives a 100 percent rating for bipolar disorder, he does not have an additional disability or disabilities independently ratable at 60 percent or more nor is he substantially confined to his or her dwelling and the immediate premises as required by 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). Therefore, his claim for SMC housebound benefits must be denied on this basis. Alternatively, the Veteran could demonstrate that he is permanently housebound due to service-connected disabilities. However, for the reasons explained previously, the Veteran is not considered to be permanently housebound due to his service-connected disabilities for VA disability purposes. The Board has also considered the Veteran’s statements regarding the severity of his symptoms as to warrant SMC for aid and attendance or based on housebound status. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities or render an opinion as to their effect on his activities of daily living. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities and his ability to live independently has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.   In conclusion, the evidence does not support the Veteran’s claim for SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound. As the weight of the evidence is against his claim for entitlement to SMC, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel