Citation Nr: 18149182 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-28 028 DATE: November 8, 2018 ORDER An effective date prior to July 22, 2013 for an award of special monthly pension (SMP) at the rate based on the need for regular aid and attendance is denied. REMANDED The issue of entitlement to service connection for tinnitus is remanded. The issue of entitlement to service connection for a low back disorder is remanded. The issue of entitlement to service connection for a neck disorder is remanded. The issue of entitlement to automotive and adaptive equipment only is remanded. FINDING OF FACT While correspondence dated April 18, 2011 can be construed as a claim for pension, entitlement to SMP at the rate based on the need for regular aid and attendance did not arise prior to July 22, 2013. CONCLUSION OF LAW The criteria for an effective date earlier July 22, 2013 for the award of SMP benefits based on the need for regular aid and attendance have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.402 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from June 1966 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted SMP based on the need for aid and attendance effective July 22, 2013; and denied entitlement to automobile and adaptive equipment and service connection for tinnitus, a neck disability, and a low back disability. In May 2017, the Board, under a separate docket number (12-10 565), (i) reopened the claims of service connection for Meniere’s disease, bilateral hearing loss, and a head or vestibular disability and (ii) remanded the issues of service connection for Meniere’s disease, bilateral hearing loss, a head or vestibular disability, an acquired psychiatric disability, a vision disability, a neck disability, bilateral tinnitus, and a low back disability; increased ratings for sinusitis, left knee disability, and right knee disability; entitlement to special monthly compensation (SMC); entitlement to total disability rating based upon individual unemployability due to service-connected disabilities (TDIU); entitlement to automotive adaptive equipment; and entitlement to an earlier effective date for SMP at the rate based on the need for regular aid and attendance. Significantly, the following issues were remanded to issue a Statement of the Case and to return to the Board only if perfected for appeal: entitlement to automotive adaptive equipment; entitlement to service connection for tinnitus, a neck disability, and a low back disability; and entitlement to an earlier effective date for SMP at the rate based on the need for regular aid and attendance. In May 2017, the agency of original jurisdiction (AOJ) issued the requested SOC; and later that month, the Veteran submitted a timely substantive appeal. Once perfected for appeal, these issues were separately docketed and now return to the Board for disposition. See, e.g., Notification letter (December 22, 2017) (explaining that the newly perfected issues have been separately docketed). The following issues have not been recertified to the Board and will be subject of a subsequent decision following the completion of the ordered development: entitlement to service connection for Meniere’s disease, bilateral hearing loss, a head or vestibular disability, an acquired psychiatric disability, and a vision disability; increased ratings for sinusitis, left knee disability, and right knee disability; entitlement to SMC; and entitlement to TDIU. At the Veteran’s request, a November 2016 Central Office hearing in Washington, D.C., was scheduled in conjunction with matters on appeal. However, the Veteran withdrew his request for that hearing by November 2016 correspondence. 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). Earlier Effective Date for Special Monthly Pension An effective date earlier than July 22, 2013 for the award of SMP based on the need of aid and attendance of another person is not warranted. Awards of aid and attendance benefits are effective the date of receipt of claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.401 (a)(1). This case turns on the date entitlement arose. As an initial matter, a Report of General Information, dated April 18, 2011, is the earliest correspondence that the Board can construe as a claim for pension. While the Report is an internal memo documenting a phone call with the Veteran, it may be liberally construed as a claim as it conveys an intent to apply for benefits, identifies the benefits sought, and is written. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Neither the Veteran nor his representative contend that he filed a claim for pension prior to the April 18, 2011 Report of General Information. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) and Roberson v. Principi, 251 F.3d 1378, 1383 (Fed. Cir. 2001) (noting that while VA has a duty to liberally read and fully develop pro se filings, it does not have a duty to raise claims not raised by the Veteran or the evidence of record). Currently, SMP has been in effect since July 22, 2013, that is, the date the Veteran first submitted a formal claim for benefits, then claimed as compensation rather than pension, at the rate based on the need for regular aid and attendance. In sum, after resolving any doubt in the Veteran’s favor, the Board finds that the earliest possible date of claim for SMP is April 18, 2011. Critically, the evidence shows that the Veteran was not in need or regular aid and attendance prior to July 22, 2013. Determinations regarding the need for aid and attendance must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996). In this regard, the particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. See 38 C.F.R. § 3.352(a). In determining whether a veteran is in need of aid and attendance, consideration is to be given to such factors as: (1) inability of the claimant to dress and undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance; (3) inability of the claimant to feed himself through loss of coordination of the upper extremities or extreme weakness; (4) inability to tend to the wants of nature; or (5) physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. See id. The Board notes that it is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. Id. Rather, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance. In this case, the Veteran’s reports that he has been housebound and unable to care for himself and the evidence shows that he received home health aide service from 2011 to 2013. See, e.g., General Report of Information (April 15, 2013) and VA treatment record (October 5, 2011). The Board notes, however that the Veteran only received home health aide service one to six hours per week until 2013, when such service was discontinued based on a lack of need. See, e.g., VA treatment record (April 29, 2013). The fact that the Veteran utilized an aide one to six hours per week does not indicate that he was so functionally impaired as to necessitate regular aid and attendance, particularly in light of the fact that he lived alone throughout the appeal. Indeed, the fact that he has lived alone negates the actual requirement of personal assistance from others. See Turnco, 9 Vet. App. at 224 (explaining that the need for aid and attendance must be based on the actual requirement of personal assistance from others). Critically, during the most recent August 2017 VA aid and attendance examination the Veteran reported that he continues to live alone, uses crutches and wheelchair to ambulate, is free to leave his house, attends medical appointments alone, bathes and feeds himself, transfers to and from his wheelchair, and occasionally drives an automobile. Indeed, VA treatment records regularly show that the Veteran arrives to appointments alone and well-groomed. Accordingly, having fully considered the above-discussed factors outlined in Turco, the Board finds that the preponderance of evidence does not so helpless as to need regular aid and attendance prior to July 22, 2013. Thus, entitlement to SMP at the rate based on the need for regular aid and attendance did not arise prior to July 22, 2013. In sum, while correspondence dated April 18, 2011 can be construed as a claim for pension, entitlement to SMP at the rate based on the need for regular aid and attendance did not arise prior to July 22, 2013. Therefore, an effective date earlier than July 22, 2013, for the award of SMP based on the need of aid and attendance of another person is not warranted.   REASONS FOR REMAND 1. Tinnitus The Veteran’s claim for entitlement to service connection for tinnitus is remanded, as it is inextricably intertwined with his claims for service connection for Meniere’s disease and a head or vestibular disability (other than Meniere’s disease) manifested by symptoms such as dizziness, vertigo, aural fullness, headaches, or cognitive impairment, to include residuals of a TBI, which were remanded in May 2017 (Docket Number: 12-10 565) and have not been recertified to the Board. Indeed, the former issues appear to be subject to ongoing development at the RO, which may reasonably yield information pertinent to the disposition of the issue of entitlement to service connection for tinnitus. 2. Low Back and Neck Disorders The Board cannot make a fully-informed decision on the issues of entitlement to service connection for low back and neck disorders because no VA examiner has opined whether such are directly related to service or his service-connected knee disorders. See, e.g., Notice of Disagreement (May 2014) (reporting that he was injured in a blast during a military training exercise). 3. Automotive and Adaptive Equipment Only The Veteran’s claim for entitlement to automotive and adaptive equipment is remanded, as it is inextricably intertwined with his claims for service connection for a vision disability and entitlement to increased ratings for service-connected bilateral knee disorders, which were remanded in May 2017 (Docket Number: 12-10 565) and have not been recertified to the Board. In this regard, the disposition and development associated with the vision and knee claims is directly relevant to entitlement to automotive and adaptive equipment, which is warranted where, in pertinent part, service-connected disability results in loss or permanent loss of use of one or both feet or permanent impairment of vision of both eyes (Central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20° in the better eye); or ankylosis of one or both knees or one or both hips (for adaptive equipment only). See 38 U.S.C. §§ 3901, 3902 (2012); 38 C.F.R. § 3.808. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current lumbar spine and/or cervical spine disorder. Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions: (a) Is it at least as likely as not that any current lumbar spine and/or cervical spine disorder was incurred in or is otherwise related to the Veteran’s service? (b) Is it at least as likely as not that any current lumbar spine and/or cervical spine disorder was caused by a service connected disability, including (c) Is it at least as likely as not that any current lumbar spine and/or cervical spine disorder was aggravated by a service connected disability, including left and right knee Osgood Schlatter’s disease and degenerative joint disease. The examiner should provide a complete rationale for any opinion provided. 2. Return the issues of entitlement to service connection for tinnitus and entitlement to automotive adaptive equipment to the Board for adjudication once the AOJ has completed development on the inextricably intertwined issues of entitlement to service connection for a vision disability, Meniere’s disease, and a head or vestibular disability (other than Meniere’s disease) manifested by symptoms such as dizziness, vertigo, aural fullness, headaches, or cognitive impairment, to include residuals of a TBI; and entitlement to increased ratings for the service-connected bilateral knee disorders (Docket Number 12-10 565). Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel