Citation Nr: 18152991 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 18-16 389 DATE: November 27, 2018 ORDER Entitlement to an effective date of April 26, 2016, but no earlier, for the grant of special monthly compensation (SMC) at the rate under 38 U.S.C. § 1114(k) (K level) based on loss of use of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran first filed an application for automobile or other conveyance and adaptive equipment (Department of Veterans Affairs (VA) Form 21-4502) on April 26, 2017, from which the agency of original jurisdiction (AOJ) inferred and granted SMC at the K level based on loss of use of the right lower extremity in a June 2017 rating decision, effective from April 5, 2017 (the date of the supporting non-VA medical evidence submitted with the claim). 2. The AOJ received an informal claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), among other things, by way of telephonic contact with the Veteran on January 12, 2010. He filed a formal TDIU application (VA Form 21-8940) later that same month. The AOJ also considered the TDIU application as a request for increased evaluations for the service-connected disabilities identified in it, including those of the right lower extremity. 3. In an unappealed June 2010 rating decision, the AOJ granted service connection for right (and left) lower extremity deep vein thrombosis; continued the evaluations assigned for the service-connected right thigh femoral nerve palsy, right hip strain, and right knee patellofemoral syndrome; and decreased the evaluation assigned for the service-connected right ankle strain to noncompensable. 4. The June 2010 rating decision with corresponding notification letter implicitly denied SMC at the K level for loss of use of the right lower extremity. 5. It was factually ascertainable for the one-year period prior to April 26, 2017, that an increase in the Veteran’s service-connected right lower extremity disabilities had occurred to meet the requirements for SMC at the K level under the applicable criteria. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for an effective date of April 26, 2016, but no earlier, for the grant of SMC at the K level based on loss of use of the right lower extremity have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 2000 to January 2009. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision of VA. In that decision, the AOJ denied an earlier effective date for the grant of SMC at the K level for loss of use of the right lower extremity that was granted in a June 2017 rating decision. See July 2017 request for reconsideration. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean, 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. 38 C.F.R. § 3.400. For effective date purposes, an award of SMC is considered an increased evaluation. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (“It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (“increase” for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Under the former regulations prior to March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date of April 26, 2016, but no earlier, is warranted for the grant of SMC at the K level based on loss of use of the right lower extremity. The Veteran has essentially contended that the effective date for the grant of SMC at the K level should be the day after his separation from service because the loss of use of his right lower extremity was present at the time of his medical retirement from the Marines. He has also contended that VA should have inferred an SMC claim earlier, as he was medically retired from service because of a right lower extremity disability. See July 2017 request for reconsideration, November 2017 notice of disagreement, and March 2018 substantive appeal; see also, e.g., October 2008 Physical Evaluation Board report (found Veteran unfit for service in part due to right femoral nerve palsy). Historically, the AOJ granted service connection for right thigh femoral nerve palsy, right hip strain, right knee patellofemoral syndrome, and right ankle strain in a February 2009 rating decision, all effective from January 31, 2009 (the day following separation from service). The Veteran did not challenge the initial evaluations assigned for those disabilities. The AOJ received an informal claim for TDIU, among other things, by way of telephonic contact with the Veteran on January 12, 2010. See January 2010 report of general information. He filed a formal TDIU application (VA Form 21-8940) later that same month. The AOJ also considered the TDIU application as a request for increased evaluations for the service-connected disabilities identified in it, including those of the right lower extremity. In an unappealed June 2010 rating decision, the AOJ granted service connection for right (and left) lower extremity deep vein thrombosis; continued (i.e., denied higher evaluations for) the evaluations assigned for the service-connected right thigh femoral nerve palsy, right hip strain, and right knee patellofemoral syndrome; and decreased the evaluation assigned for the service-connected right ankle strain to noncompensable. In so doing, the AOJ considered evidence including February 2010 and March 2010 written statements from the Veteran discussing problems with his right lower extremity, as well as an April 2010 VA general medical examination report. In the corresponding notification letter, the AOJ stated that the rating decision and letter constituted its decision based on the January 2010 claim and represented all claims the AOJ understood to be specifically made, implied, or inferred in that claim. The record shows that the next correspondence received from the Veteran was an October 2014 dependency claim. The Board acknowledges the Veteran’s contention that the AOJ should have inferred an SMC claim earlier based on the nature of his right lower extremity problems at the time of his medical retirement from service. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that a request for an increase in benefits should be inferred as a claim for SMC regardless of whether it has been raised by a veteran or previously adjudicated. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). The AOJ did accept the Veteran’s January 2010 TDIU claim as a request for increased evaluations for right lower extremity disabilities. Nevertheless, the Board finds that the resulting June 2010 rating decision with corresponding notification letter implicitly denied SMC at the K level for loss of use of the right lower extremity. The information in those documents, as outlined above, reasonably informed the Veteran that a higher rate of compensation for the right lower extremity disabilities was considered and denied. See Adams v. Shinseki, 568 F.3d 956, 961-964 (Fed. Cir. 2009) (explaining implicit denial doctrine in the context of AOJ rating decisions); see also, e.g., Ingram v. Nicholson, 21 Vet. App. 232, 248 (2007) (also cited in Adams; finding in context of TDIU claim that “even if [the claimant] does not have a clear understanding of TDIU, he does have a clear statement of which disability is being rated and the fact that [VA] has declared it to be less than 100% disabling. Hence, an appellant’s ignorance of a particular reason for the denial of a total disability rating does not preclude him from understanding that an appealable decision has been made concerning his claims.”). Indeed, the right ankle disability evaluation was reduced to noncompensable in that decision. In addition, generally, a decision of the AOJ that is not timely appealed becomes final and binding in the absence of clear and unmistakable error (CUE). A claim for benefits based on CUE in a prior final decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). For a claimant to successfully establish a valid claim of CUE in a final AOJ decision, the claimant must articulate with some degree of specificity what the alleged error is, and unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the final decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo, 6 Vet. App. at 44, review en banc denied, 6 Vet. App. 162, 163 (1994) (noting that pleading and proof are two sides of the same coin; if there is a heightened proof requirement, there is, a fortiori, a heightened pleading requirement). The Veteran and his representative have not specifically alleged a valid claim of CUE in the June 2010 rating decision. Based on the foregoing, the June 2010 rating decision is final, and there was no pending SMC claim thereafter. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. As such, the April 2017 inferred SMC claim is reviewed as a non-initial increased evaluation claim consistent with the laws and regulations outlined above. The Veteran first filed an application for automobile or other conveyance and adaptive equipment (VA Form 21-4502) on April 26, 2017, from which the AOJ inferred and granted SMC at the K level based on loss of use of the right lower extremity in a June 2017 rating decision, effective from April 5, 2017 (the date of the supporting non-VA medical evidence submitted with the claim). He also submitted an application for specially adapted housing or a special home adaptation grant (VA Form 26-4555) at that time. On both applications, he indicated that he had not previously applied for those benefits. The record does not contain any earlier communication indicating an intent to file a claim for loss of use of the right lower extremity, and the Veteran has not contended otherwise. Therefore, the remaining issue is whether a factually ascertainable increase in the right lower extremity disabilities occurred within one year of the April 2017 claim. SMC under 38 U.S.C. § 1114(k) is payable for each anatomical loss or loss of use of one foot. Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example: (a) extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 31/2 inches or more, will constitute loss of use of the foot involved and (b) complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. §§ 3.350(a)(2) and 4.63. Regarding the date of entitlement, the AOJ granted SMC at the K level based on an April 5, 2017, written statement from the Veteran’s treating physician, Dr. C.H., that was provided in support of his automobile and home adaptation applications. In the written statement, Dr. C.H. noted that the Veteran had been under his care for the past one and a half years. He explained that the Veteran was severely limited in his ability to use his right lower extremity secondary to his 2005 in-service gunshot wound injury, finding that he had permanent loss of the effective use of his right lower extremity related to driving and transferring himself and his young children in and out of the car, for which automobile adaptation would benefit him. Dr. C.H. also explained that the Veteran had mobility issues, including difficulty navigating stairs and rough terrain, for which certain home adaptations would be helpful. Based on the foregoing, the Board concludes that there is a reasonable doubt as to whether it was factually ascertainable for the one-year period prior to April 26, 2017, that the Veteran’s service-connected right lower extremity disabilities underwent an increase to meet the requirements for SMC at the K level. Dr. C.H. had been treating the Veteran for over a year at the time that he wrote the April 2017 letter. Given the history of the Veteran’s difficulties with his right lower extremity, the presentation discussed in the letter likely did not start on that day. See also, e.g., September 2013 VA treatment record (Veteran indicated he had spoken to VA treatment provider about getting fee-based treatment, indicating that he could not keep up with the drives to the Fayetteville facility, as the last time he went there and back – with records showing treatment several months prior – it took two days for his feet and calves to thin out). Accordingly, resolving any reasonable doubt in favor of the Veteran, the Board concludes that the evidence supports the assignment of an effective day of April 26, 2016, for the grant of SMC at the K level under the exception to the general rule for effective dates outlined above. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Postek, Counsel