Citation Nr: 18155478 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 18-05 047 DATE: December 4, 2018 ORDER Entitlement to a June 27, 2007, effective date, but no earlier, for the assignment of special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l) is granted. [Given the Veteran’s attorney’s September 2018 letter in which he specifically limited his representation to the above earlier effective date claim, BVA Directive 8430, 14, c,10, (a), 5 (May 17, 1999) requires that the appellant’s claim for a higher level of special monthly compensation be the subject of a separate decision.] FINDING OF FACT 1. The Veteran did not submit a claim, either formal or informal, for the assignment of special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l) earlier than October 23, 2007. 2. The preponderance of the evidence shows that in the one-year period prior to October 23, 2007, the first time it was factually ascertainable that the Veteran met the criteria for the assignment of special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l) was on June 27, 2007. CONCLUSION OF LAW The criteria for a June 27, 2007, effective date, but no earlier, for the assignment of special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l) have been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.321, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from December 1966 to December 1968, December 1970 to May 1972, and December 1990 to December 1991. He also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the National Guard. In February 2018, the Veteran’s representative withdrew the Board personal hearing request. In a March 2018 decision signed by a different Veterans’ Law Judge, the Board of Veterans’ Appeal (Board) denied the Veteran’s claim for an effective date earlier than January 10, 2011, for the assignment of special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l). The Veteran appeal the March 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent September 2018 Order, the Court vacated and remanded the March 2018 Board decision in accordance with the terms of the parties August 2018 of Joint Motion for Remand (JMR). Lastly, the Board notes that additional evidence was added to the claims file since the issuance of the November 2017 statement of the case. Nonetheless, the Board finds that it may adjudicate the appeal without obtaining a waiver from the Veteran or remanding for agency of original jurisdiction (AOJ) review because the evidence is not pertinent as to the claim for an effective date earlier than January 10, 2011, for the assignment of special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l). See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The Board believes that further delays in the adjudication of this case must be avoided. The Earlier Effective Date Claim The Veteran asserts, in substance, that the assignment of special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l) should be effective from February 1, 1995; the date he was first granted a 100 percent schedular rating for his service connected service-connected disabilities because his adverse symptomatology and treatment have been the same since that time. Generally, the effective date of an evaluation and award of 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; 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary 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). While the laws and regulations governing what is a “claim” or “application” for VA benefits have since been changed, during the time period covered by this appeal, the term “claim” or “application” meant 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 intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. In this regard, it is well settled that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. If a Veteran file’s a claim for an increased rating with VA and the claim is disallowed he has the right to appeal that disallowance to the Board. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the Veteran does not perfect an appeal, however, the disallowance becomes final. See 38 U.S.C. § 7105. Similarly, denials of claims by the Board are final on the date the decision is issued by the Board. 38 U.S.C. § 7104. The finality of that rating decision can only be upset upon a finding of clear and unmistakable error (CUE). See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105. The effective date of an award based on a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The United States Court of Appeals for Veterans Claims (Court) in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the regional office (RO) issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. With the above criteria in mind, the record shows that an April 1997 rating decision earlier denied the Veteran’s claim for special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l). The Veteran did not appeal this decision. Likewise, the Board finds that the decision did not remain open because no medical records were not received in the first post-decision year, relevant written statements regarding special monthly compensation were not received from the Veteran or his representative in the first post-decision year despite the record showing he wrote the RO on a number of occasions during this time period, and the RO did not thereafter associated with the record VA treatment records after the time to appeal the decision had run that were created during the one-year appeal period and which the RO have knowledge of as well as which were new and material evidence. See 38 C.F.R. § 3.156(b); Turner v. Shulkin, 29 Vet. App. 207 (2018). Lastly, the Board finds that it cannot adjudicate whether there was CUE in the April 1997 rating decision because the Veteran has never made such a claim and the issue has not previously been adjudicated by the RO. See 38 C.F.R. §§ 20.200, 20.202, 20.302. Accordingly, the Board finds that the April 1997 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Consequently, the Board finds that effective date for special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l) may be no earlier than a new application; at some point in time after the final April 1997 rating decision. In reaching this conclusion, the Board has not overlooked the fact that the August 2018 JMR cites to a “February 1994” (sic) (actual date of the letter is November 22, 1994) statement from the Veteran’s wife and a February 1995 VA examination report in support of its conclusion that the Board in the March 2018 decision failed to discuss and analyze relevant evidence. Specifically, the JMR reaches this conclusion because the wife’s statement and the VA examination document the Veteran having problems with toileting, bathing, feeding, and/or dressing himself because of his service-connected right-hand disability. However, as discussed above, entitlement to earlier effective date for special monthly compensation based on the need for regular aid and attendance under 38U.S.C. § 1114(l) is barred pre-April 1997 because of the finality of the April 1997 rating decision. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Therefore, respectfully, the Board can find no merits in the August 2018 JMR’s finding that either the “February 1994” (ac/k/a November 22, 1994) statement from the Veteran’s wife and/or the February 1995 VA examination report are relevant evidence as to the current claim for an earlier effective date. The next question for the Board to consider is when, after April 1997, the record shows the Veteran filed a formal or informal claim for special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l). In this regard the Board finds, as did the RO, that the October 23, 2007, VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, acts as the earliest evidence of record that VA can treat as a claim for special monthly compensation based on the need for regular aid and attendance following the final April 1997 rating decision. See 38 U.S.C. § 5110; 38 C.F.R. §§ 3.157, 3.400; MacPhee, super. In reaching this conclusion the Board has not overlooked the fact that the record includes many earlier writings from the Veteran, treatment records, and VA examination reports generated in the April 1997 to October 2007 time period. However, the Board finds that none of these pre-October 23, 2007, records act as an earlier formal or informal claim for special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l) because none indicate an intent to apply for one or more benefits under the laws administered by VA (i.e., regular aid and attendance under 38U.S.C. §1114(l)). Id. In other words, just because pre-October 23, 2007 medical records and statements may have documented the Veteran complaints and treatment for problems with his right hand, the Board finds that cannot, by themselves, act as an earlier claim for special monthly compensation because they also needed to include an express intent to apply for regular aid and attendance under 38U.S.C. §1114(l). Id. Because the effective date for an increased rating like regular aid and attendance under 38U.S.C. §1114(l) can be up to one year prior to receipt by the RO of the claim, the question remaining for the Board to consider is whether there is a factually ascertainable worsening of his symptoms showing entitlement to the benefit at any time in the one-year period prior to October 23, 2007. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98. In this regard, special monthly compensation is payable where the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Anatomical loss or loss of use of a hand or 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 elbow or 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 grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2). For example, 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)(b). The question concerning loss of use “is not whether amputation is warranted but whether the [Veteran] has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance.” Tucker v. West, 11 Vet. App. 369, 373 (1998). As directed by 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the 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). It is not required that all of the disabling conditions enumerated in 38 C.F.R. §3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance not that there is a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown,9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in §3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above criteria in mind, the RO in the January 2017 rating decision granted the Veteran special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l) effective January 10, 2011, because this was the date it believed that the medical evidence established that the Veteran was found to require regular aid and attendance (even though his claim had been pending since October 23, 2007). The Board disagrees. Instead, as will be explained below, the Board finds that the Veteran met the criteria for the need for regular aid and attendance under 38U.S.C. §1114(l) effective June 27, 2007. In this regard, the record shows that the Veteran was in receipt of a 70 percent rating for radial and ulnar nerve paralysis of the right upper extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8515 because of complete paralysis of the major hand at all times since at least June 27, 2007. The record also shows that the Veteran received a 40 percent rating for right radial nerve entrapment, post-operative, with serve limitation of motion of the right elbow under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5205 because of favorable ankylosis of the elbow of the major arm at all times since at least June 27, 2007. Moreover, the Board finds that at the June 27, 2007, examination the Veteran competently and credibly reported on observable right hand adverse symptomatology (i.e., no grip strength, being unable to clench objects with his right hand, and having minimal use of his right hand altogether). See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Furthermore, the Board finds that the June 27, 2007, examiner credibly opined that the appellant was unable to use his right hand to tie shoelaces and to fasten buttons. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In this context, the Board also finds it significant that in the earlier February 1994 (a/k/a November 22,1994) statement from the Veteran’s wife as well as at the earlier February 1995 VA examination there were competent and credible reports of observable right hand adverse symptomatology as well as a medical opinion regarding the appellant’s right-hand symptomatology preventing toileting, bathing, feeding, and/or dressing. See Davidson, supra; Colvin, supra. Given the above, the Board finds that the collective impact of the above two service-connected right upper extremity disability caused the Veteran to have the loss of use of his right hand since June 27, 2007, but no earlier, because the most probative evidence of record shows that he does not have effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. See Jandreau, supra; Tucker, supra. Tellingly, the Veteran’s above documented adverse symptomatology due to the loss of use of his right hand because of his service connected disabilities are specifically the types of symptoms 38 C.F.R. § 3.352(a) directs VA to consider in determining whether the Veteran is in need of regular aid and attendance of another person - inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable as well as an inability to attend to the wants of nature. In reaching the above conclusion the Board has not overlooked the fact that an earlier January18, 2007, VA treatment record the Veteran reported having problems with some persistent numbness in the right arm and tingling in the entire right hand as well as his reports of sometimes using a hand brace. However, the Board finds that this record does not show for the first time the Veteran met the criteria for special monthly compensation based on the need for regular aid and attendance under 38 U.S.C. §1114(l). The Board has reached this conclusion because, while the Veteran was competent and credible to report on his observable right hand adverse symptomatology (see Davidson, supra), when seen on January18, 2007, the symptomatology record in this treatment records unlike the symptomatology documented at the later June 27, 2007, examination, is not supported by a medical expert. See Owens, supra. Further, the problems the Veteran has cited at this point (persistent numbness in the right arm and tingling in the entire right hand) does not rise to the level of problems needed for the need for regular aid and attendance. The Veteran, at this point, is having problems with his service connected disabilities, which is to be expected, nothing more. Lastly, the Board finds it significant that since at all time since at least June 27, 2007, the Veteran was also service-connected for PTSD and a depressive disorder rated as 70 percent disabling under 38 C.F.R. § 4.125, 9411-9434; a back disability rated as 40 percent disabling under 38 C.F.R. § 4.71a, 5295; and asthma rated as 30 percent disabling under 38 C.F.R. § 4.97, 6602. The Board finds that the ratings in place for these other service-connected disabilities also weigh in favor of finding that he had “other significant disabilities” at all times from June 27, 2007. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). See Jandreau, supra. Given the totality of the evidence discussed above and with affording the Veteran the benefit of doubt, the Board finds that when considered his condition as a whole that the most probative evidence of record shows that it was factually ascertainable that the appellant first met the criteria for special monthly compensation based on the need for regular aid and attendance under 38 U.S.C. §1114(l) on June 27, 2007 (i.e., within the one-year period prior to his October 23, 2007, claim), but no earlier. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400(o)(2), 3.352(a); VAOPGCPREC 12-98; Turco, supra; Jandreau, supra. Given the above, the Board finds that that the preponderance of the evidence shows that the Veteran is entitled to an effective date of June 27, 2007, but no earlier, for the award of special monthly compensation based on the need for regular aid and attendance under 38U.S.C. §1114(l). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel