Citation Nr: 18154714 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 17-03 377 DATE: November 30, 2018 ORDER Entitlement to an earlier effective date for the grant of special monthly compensation based on need for aid and attendance is granted. Entitlement to accrued benefits are granted. FINDINGS OF FACT 1. From the date of the Veteran’s claim for special monthly compensation based on need for aid and attendance, the Veteran’s various nonservice-connected disabilities resulted in physical or mental incapacity which required care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 2. The Board has granted the Veteran’s claim for an earlier effective date for the grant of special monthly compensation based on need for aid and attendance; the appellant bore the cost of the Veteran’s burial CONCLUSIONS OF LAW 1. The criteria for an effective date of November 19, 2013, for the grant of special monthly compensation based on need for aid and attendance have been met. U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.350, 3.352, 3.400. 2. Entitlement to accrued benefits in the amount of any unreimbursed burial costs are granted to the extent that accrued benefits are available to cover those costs. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1952 to October 1954. The Veteran died in November 2017. The appellant is the Veteran’s niece who has successfully identified as the appellant on the underlying earlier effective date claim and who seeks accrued benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Philadelphia, Pennsylvania. As a matter of background, the Veteran’s earlier effective date claim came before the Board in July 2017, at which time the claim was remanded for further development. Following the Veteran’s death, the appellant filed a claim for accrued benefits based on that claim, and was found to be a valid substitute on that claim. The matter, to include entitlement to accrued benefits based on the claim, is now returned to the Board for appellate review. 1. Entitlement to an earlier effective date for the grant of special monthly compensation based on need for aid and attendance Prior to his death, the Veteran sought an earlier effective date for a grant of special monthly pension based on need for aid and attendance. The Board finds that the claim should be granted effective November 19, 2013, that date of his claim. Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Special monthly compensation is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). As it pertains to the present case, criteria for establishing such need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). The Veteran initially sought a grant of special monthly pension in November 2013. That claim was initially denied in a March 2014 rating decision and the Veteran filed a notice of disagreement. In March 2016, a new rating decision was issued which granted aid and attendance, effective June 5, 2015. However, the Veteran filed a notice of disagreement with that grant, arguing that his effective date should be the date of his claim. The Veteran’s claim was granted with an effective date of June 5, 2015, based upon a primary care clinic note from that date which found he was able to bathe himself, although he may require assistance bathing one part of his body such as a back or leg; he was able to dress himself; was able to move in and out of bed without assistance; had occasional accidents of urination or bowels; was able to feed himself without assistance; could answer telephone calls; required accompaniment on shopping trips and other trips from the home such as to doctors’ appointments; needed to have meals prepared and served; required aid with dispensing his own medication; and needed help with banking or major purchases, but was otherwise able to manage his own day-to-day purchases. VA concluded that this note showed need for aid and attendance. Looking back, the Veteran was afforded a VA examination in December 2013 which noted that he lived alone, but due to memory problems, he required assistance with cooking and cleaning, as well as assistance going to medical appointments and paying his bills. The Veteran’s daughter stated that she was considering moving in with him as she did not feel he was safe living alone. Also in support of that claim, the Veteran submitted July 2013 statements from the appellant (his primary care taker) and his doctor. The statement from the primary caretaker niece stated that he required help feeding, clothing and bathing himself, as well as with dispensing of his own medications and assistance with doctors’ visits. The physician found him capable of basic hygiene and feeding, but noted that he required assistance in places he was not familiar with due to disorientation, and that while he recognized places around his home, he would require assistance if he went farther than 400 meters from his home. She also noted the need for assistance with managing medication and preparing of meals. After careful consideration, the Board does not find that the July and December 2013 medical records are significantly different from the June 2015 medical note. Particularly, the Board observes that as early as July 2013, a medical professional found that he should not leave his home or the immediate surrounding area without assistance due to disorientation. Further, the appellant, the Veteran’s primary care taker, who had the most firsthand experience with the Veteran’s needs stated that he required regular care for purposes of dressing, bathing, and feeding himself, as well as managing his medications and leaving the home. Therefore, affording the complete benefit of the doubt, the Board finds that the Veteran met the criteria for a grant of special monthly pension based on a need for aid and attendance from the date of his claim, November 19, 2013. As this is the earliest date available for a grant of that benefit, the Board will grant the earlier effective date. 2. Entitlement to accrued benefits The appellant seeks accrued benefits which here owed to her uncle, the Veteran, at the time of his death. the Board finds that the claim should be granted in the amount of any unreimbursed expenses incurred for the cost of the Veteran’s funeral. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a beneficiary, be paid to the living person first listed below: (A) the beneficiary’s spouse; (B) the beneficiary’s children (in equal shares); (C) the beneficiary’s dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(6). The appellant, as the Veteran’s niece is not a spouse, child or dependent parent and therefore is only eligible to receive accrued benefits in the amount necessary to reimburse her for the cost of the Veteran’s final sickness and burial. As was noted above, the Board has found that an earlier effective date should be granted for the claim of special monthly pension based on need for aid and attendance. Therefore, any monetary benefits owed to the Veteran by virtue of that grant are now accrued. The appellant as submitted a claim for accrued benefits, as well as a claim for burial benefits. The claim for burial benefits was granted in July 2017, although it did not cover the full cost of the Veteran’s funeral. With her claim for accrued benefits, the appellant submitted a bill from the funeral home, showing she paid for the funeral in full.   Therefore, to the extent that the appellant has incurred any qualifying unreimbursed burial expenses, and to the extent that the above grant of an earlier effective date has resulted in funds becoming accrued, the Board finds that accrued benefits should be granted to the appellant in the amount of those unreimbursed expenses only. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel