Citation Nr: 18148420 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-42 935 DATE: November 7, 2018 ORDER An effective date earlier than September 1, 2010 for the award of dependency benefits for the Veteran’s son (F.M.) is denied. Entitlement to special monthly compensation (SMC), to include pursuant to 38 U.S.C. § 1114 (s), is denied. FINDINGS OF FACT 1. The RO awarded dependency benefits for F.M., effective September 1, 2010, the earliest date allowable by law. 2. The Veteran is service-connected disabilities PTSD and tinnitus; he has not been shown to be bedridden or housebound. CONCLUSIONS OF LAW 1. The claim for an effective date earlier than September 1, 2010 for the award of dependency benefits for the Veteran’s son (F.M.) is without legal merit. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4 (b)(2), 3.31, 3.401. 2. The criteria for entitlement to SMC, to include pursuant to 38 U.S.C. § 1114 (s), have not been met. 38 U.S.C. §§ 1114. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to April 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2016 and November 2011 rating decision(s) from the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. 1. An effective date earlier than September 1, 2010 for the award of dependency benefits for the Veteran's son (F.M.) is denied. An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110 (f); 38 C.F.R. § 3.401 (b)(3). The effective date for additional compensation for dependents will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member’s award. 38 C.F.R. § 3.401 (b). The “date of claim” for additional compensation for a dependent child is the date of the child’s birth/adoption, if evidence of the event is received within one year of the event; otherwise, it is the date notice is received of the dependent’s existence, if evidence is received within a year of notification of such rating action. 38 U.S.C. § 5110 (f), (n); 38 C.F.R. § 3.401 (b)(1). The earliest date that an additional award of compensation for a dependent child can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. §§ 1115, 1134, 1135. Specific rates are provided for a veteran’s spouse and children. A child is defined as an unmarried person who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57 (a). The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if he or she is enrolled in school. 38 C.F.R. §§ 3.503, 3.667. In this case, the Veteran contends that his son (F.M.) should have been added as a dependent earlier than September 1, 2010. Specifically, he asserts that the effective date should be in 2004 when he officially started providing financial support for (F.M.). The Board notes that Veteran’ son (F.M) was born in December 1988. After his 18 birthday, in 2006, he would only be allowed dependent status if he was in college. In an August 2011 decision, the RO awarded dependency benefits for F.M., effective from September 1, 2010, which was the beginning of the month after the claim was received and when there was evidence provided that he was actually in school. Additional evidence to show that the Veteran’s son was in school in the Fall semester of 2010, effective August 23, 2010. In November 2011 the VA then granted an earlier effective date from September 1, 2010, because this was the beginning of the month after his enrollment in school and it was still within one year of the actual date of claim, April 18, 2011. Although it may be true that the Veteran was assisting in taking care of his son (F.M.) as early as 2004, there is no documentation in the Veteran’s file that he made a claim with VA prior to April 2011. Based on current laws and regulations, the RO appropriately determined that F.M. could not be added as the Veteran’s dependent child from 2004 because the claim was not timely received within a year from the date. The RO has assigned the earliest possible effective date. As there is no evidence that the Veteran filed a claim for (F.M.) prior to April 2011, there is no reasonable doubt to be resolved in the Veteran’s favor on this point. The Board has no authority to create exceptions, or to overturn or to disregard the very specific limitations on the assignment of effective dates. 38 U.S.C.§ 7104 (a); see Harvey v. Brown, 6 Vet. App. 416, 423 (1994) (payments of money from the Federal Treasury are limited to those authorized by statute). The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Although the Board is required to “render a decision which grants every benefit that can be supported in law,” under these circumstances, there is no basis in law to grant the appeal for an earlier effective date for the award of dependency benefits. See 38 C.F.R. § 3.103 (a). Accordingly, the Veteran’s appeal as to this must be denied for lack of legal merit or entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to special monthly compensation based on aid and attendance/housebound. The Veteran has asserted he is entitled to SMC benefits at the housebound rate, pursuant to 38 U.S.C. § 1114 (s). Aid and attendance is payable for being so helpless (due to service connected disabilities) as to be permanently bedridden or in need of regular aid and attendance. Aid and attendance is defined as: inability to dress or undress, or to keep 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 oneself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or physical or mental incapacity which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to the daily environment. "Bedridden" means that condition which actually requires that the claimant remain in bed. Voluntarily taking to bed or the fact 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 only necessary that the evidence shows that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations as to the need for regular aid and attendance will not be based solely upon an opinion that their condition is such as would require them to be in bed. They must be based on the actual requirement of personal assistance from others. SMC is payable at the housebound rate where, in relevant part, the Veteran has a single service-connected disability rated at 100 percent, and has additional service-connected disability or disabilities independently ratable at 60 percent or more, or by reason of such service-connected disability or disabilities is permanently housebound. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). This housebound requirement is met when the Veteran is substantially confined as a direct result of service connected disability(ies) to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the service connected disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for SMC. Under subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which are rated at 100 percent disabling. However, a TDIU rating may satisfy the “rated as total” element of section 1114(s) if TDIU was awarded for a single, distinct service-connected disability. See Buie, 24 Vet. App. at 250-51. PTSD has been granted a schedular 100 percent rating; however, he is only rated at 10 percent disabling for his remaining service-connected disability, tinnitus. Thus, for SMC purposes, PTSD satisfies the requirement of a “service connected disability rated as total.” See Buie, 24 Vet. App. at 251. However, he does not have additional service-connected disability or disabilities independently ratable at 60 percent or more. Further, the record does not show that he is bedridden, housebound, or in need of regular aid and attendance due to his service-connected PTSD and tinnitus. See 38 U.S.C. § 1114. A Housebound/Aid and Attendance VA examination was conducted on July 2014. Examination findings showed the Veteran was alert and cooperative, pleasant with no acute distress. The examiner noted that the Veteran had stiffness that limited his physical examination but his strength seemed to be equal bilaterally. The examiner noted the Veteran had steady gait and ambulated without assistive devices. The examiner noted the Veteran leaves his residence to attend needed errands. The Veteran was noted to be able to care for himself, prepare his own meals. The Veteran was not found to require nursing home care, need assistance with bathing or other hygiene needs, or require medication management. Another housebound/ aid and attendance VA examination was conducted in July 2015. The examiner found the Veteran was alert and cooperative, pleasant with no acute distress. The examiner noted that the Veteran’s bilateral upper and lower extremities had normal muscle bulk. Upper extremity strength was equal with reflexes at 2+. The examiner noted the Veteran had steady gait and ambulated without assistive devices. The examiner noted the Veteran leaves his residence to attend needed errands usually 2-3 times a week. The Veteran was noted to spend much of his day at home limited by his chronic back and neck pain. The Veteran was noted to be able to care for himself, prepare his own meals. The Veteran was not found to require nursing home care, need assistance with bathing or other hygiene needs, or require medication management A VA PTSD examination was conducted in November 2016. The examiner found the Veteran brought himself and his wife to the examination. He noted the Veteran ambulated slowly and with apparent difficulty into the assessment room. He was wearing a back brace. The examiner noted the Veteran was casually but neatly dressed and groomed. He exhibited good eye contact and a dysphoric affective demeanor. His mental status was within normal limits. The examiner explained the Veteran’s approach to the evaluation seemed to involve the strategy of listing, sometimes in rote fashion, disabling mental health symptoms. Noting that at times he used clinical jargon, such as "danger to myself and others." He displayed an inability to actually describe the symptoms in his own words however. He was only able to make vague, often fairly uninformative, statements about his social and emotional functioning. He was unwilling to elaborate on these statements, even when encouraged to do so. These response patterns made him sound unconvincing and undermined the validity of his information. Another VA examination was conducted on June 2018. Examination findings showed the Veteran appeared for the evaluation on time and drove to the appointment with no apparent difficulties. The Veteran demonstrated intact hygiene, his affect was somewhat flattened but he was able to warm appropriately when describing his interests (food channel and other tv. shows). The Veteran also demonstrated tearfulness when describing his experiences with depression. He was oriented times four. The was no reported suicidal or homicidal ideations. The examiner noted reality testing was intact. VA treatment records indicate the Veteran is not bedridden, housebound, or in need of regular aid and attendance. Indeed, it is shown that he was able to drive to his himself to medical examinations. Pertinent VAX reports reveal that he was clean, appropriately dressed, and well-groomed for his examinations. Furthermore, he denied violent suicidal and homicidal ideations. Altogether, the evidence does not support a finding that the Veteran is bedridden, housebound, or in need of regular aid and attendance. Should that change, the Veteran is free to file a claim for SMC. However, given the lack of evidence or assertion that the Veteran is bedridden, housebound, or in need of regular aid and attendance, entitlement to SMC is not warranted. As the preponderance of the evidence is against the claim, the “benefit-   of-the-doubt” rule is not applicable and the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel