Citation Nr: 18152547
Decision Date: 11/23/18	Archive Date: 11/23/18

DOCKET NO. 16-05 654A
DATE:	November 23, 2018
ORDER
Entitlement to an earlier effective date prior to November 20, 2014, for the grant of an initial separate disability rating for aphonia, associated with amyotropic lateral sclerosis (ALS) is granted.
Entitlement to an earlier effective date for the establishment of a dependent is denied.
REMANDED
Entitlement to service connection for loss of smell as secondary to service connected amyotropic lateral sclerosis (ALS) is remanded.
Entitlement to service connection for loss of taste as secondary to service connected amyotropic lateral sclerosis (ALS) is remanded.
Entitlement to an effective date prior to November 20, 2014, for the award of a higher level of special monthly compensation (SMC) at the R2 level based on aid and attendance, to include on the basis of clear and unmistakable error (CUE) is remanded.
FINDINGS OF FACT
1. Resolving all doubt in the Veteran’s favor, the evidence shows that the Veteran has suffered from aphonia since September 30, 2008.
2. Additional compensation for the Veteran’s spouse was paid effective October 1, 2008, which was the first of the month following the date that service connection for ALS was established. 
CONCLUSIONS OF LAW
1. An effective date of September 30, 2008, but no earlier, for the grant of a 100 percent disability rating for aphonia, associated with amyotropic lateral sclerosis (ALS) is granted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.400.
2. The criteria for an effective date earlier than October 1, 2008, for the award of additional compensation for the Veteran’s spouse have not been met. 38 U.S.C. §§ 1115, 5110, 5111; 38 C.F.R. §§ 3.4(b)(2), 3.31, 3.205, 3.401.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1973 to September 1976. 
1. Entitlement to an earlier effective date prior to November 20, 2014, for the grant of an initial separate disability rating for aphonia, associated with amyotropic lateral sclerosis (ALS) 
Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim; a claim reopened after final disallowance; or a claim for increase, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) and (b)(2); 38 C.F.R. § 3.400 (o)(1).
The Veteran seeks entitlement to an effective date earlier than November 20, 2014, for the grant of service connection for aphonia associated with ALS. 
In a Statement in Support of Claim received by VA on September 30, 2008, the Veteran stated that he wished to file a service connected informal claim for ALS. A formal claim for severe ALS was received November 20, 2008. 
In a January 2009 rating decision, the Veteran was granted service connection for ALS with an evaluation of 100 percent effective September 30, 2008, which was the date of the Veteran’s informal claim. In its January 2009 decision, the RO indicated that medical evidence received from VAMC Bay Pines, from May 11, 2004 through January 15, 2009, showed that the Veteran had a diagnosis of ALS. In addition, the rating decision indicated that on exam in January 2009, the Veteran was ventilator dependent, in an electronic wheelchair, and that the doctor noted that the Veteran can mumble but not really communicate due to the ventilator. 
The Board finds that the Veteran’s claim for aphonia is a downstream issue from the claim of entitlement to service connection for ALS. Further, resolving reasonable doubt in favor of the Veteran, the medical evidence shows that the Veteran was ventilator dependent and could not really communicate. Thus, under law, the earliest effective date for the grant of service connection for aphonia, secondary to service connected ALS, is September 30, 2008. 
The Board finds no communication prior to September 30, 2008, that may be considered a formal or informal claim for ALS or aphonia. Thus, under law, the earliest effective date for the grant of service connection for aphonia, associated with service-connected ALS, is September 30, 2008, the date of receipt of the Veteran’s claim of entitlement to service connection for ALS.  
2. Entitlement to an earlier effective date for the establishment of a dependent 
Veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). 
When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates: (1) the date of claim; (2) the 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 dependents is the date of the Veteran’s marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, 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; 38 C.F.R. § 3.401. 
The earliest date that an additional award of compensation for dependents 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.
In a January 2009 rating decision, the Veteran was granted service connection for ALS at 100 percent disabling effective September 30, 2008. The Veteran was notified of that decision in a letter dated February 3, 2009. On February 27, 2009, the Veteran provided the VA with the required dependency information. 
Additional compensation for the Veteran’s spouse was subsequently paid effective October 1, 2008, which was the first of the month following the date that service connection for ALS was established. 
As the regulation provides that the earliest date that an additional award of compensation for dependents can occur is the first day of the calendar month following the month in which the award became effective, the Board finds that an effective date earlier than October 1, 2008 is not warranted. See 38 C.F.R. § 3.31.
REASONS FOR REMAND
1. Entitlement to service connection for loss of smell AND loss of taste as secondary to service connected amyotropic lateral sclerosis (ALS) are remanded.
The Veteran has submitted multiple statements reporting that he has completely lost his ability to taste and smell. The Veteran contends that his loss of smell and taste are secondary to his service-connected ALS. 
Although the objective medical evidence does not contain a diagnosis of loss of smell or taste, the Veteran is competent to state that he does not have a sense of smell or taste as this is within his lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 
The Board finds that the December 2014 VA examination is inadequate as no opinion was rendered as to the nature and etiology of the Veteran’s loss of smell and taste. Therefore, a VA medical opinion is warranted to address whether the Veteran’s loss of smell and taste were caused or aggravated by the Veteran’s service connected ALS. 
2. Entitlement to an effective date prior to November 20, 2014, for the award of a higher level of special monthly compensation (SMC) at the R2 level based on aid and attendance, to include on the basis of clear and unmistakable error (CUE) is remanded.
The Board regrets further delay, but the record appears to be incomplete.
The Veteran contends that the RO committed a clear and unmistakable error, on the rating decision dated in January 2009, by failing to grant additional special monthly compensation benefits based on a higher level of aid and attendance, the R2 level. 
The January 2009 rating decision noted that the evidence included a review of VAMC Bay Pines, from May 11, 2004 through January 15, 2009. However, a review of the record before the Board reveals that the claims file does not include those medical records. 
While on remand, the RO must take appropriate action to obtain the Veteran’s VAMC Bay Pines medical records, from May 11, 2004 through January 15, 2009.
The matters are REMANDED for the following action:
1. Obtain updated VA treatment records as well as the Veteran’s VAMC Bay Pines medical records, dated May 11, 2004 through January 15, 2009.
2. Thereafter, arrange for a qualified medical examiner who has not provided a medical opinion regarding the claim of entitlement to service connection for loss of smell and loss of taste, to review the claims folder and provide an opinion that fully addresses the questions below. The examiner should state in the opinion that review of the claims folder/electronic record was accomplished. The examiner should accomplish the following:
Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected ALS caused a loss of smell and/or loss of taste. 
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Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected ALS aggravated (chronically worsened beyond the natural progression) any loss of smell and/or loss of taste disability.
A complete rationale must be provided for all opinions and conclusions rendered. 


 
JOHN Z. JONES
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M.D., Associate Counsel