Citation Nr: 18157327 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-24 023 DATE: December 12, 2018 ORDER Entitlement to an effective date of May 2, 2005, but not earlier, for the award of a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to an effective date of April 3, 2006, but no earlier, for special monthly compensation (SMC) by reason of requiring regular aid and attendance is granted. FINDINGS OF FACT 1. As of May 2, 2005, but no earlier, the Veteran’s PTSD more closely approximated occupational and social impairment, with deficiencies in most areas. 2. As of April 3, 2006, but no earlier, the Veteran’s service-connected disabilities rendered him so helpless as to be in need of the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 2, 2005, but no earlier, for the assignment of a 70 percent rating for PTSD have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.400. 2. The criteria for an effective date of April 3, 2006, but no earlier, for the award of SMC based on the need for aid and attendance of another person due to service-connected disabilities have been met. 38 U.S.C. §§ 1114(l), 5110, 7105; 38 C.F.R. §§ 3.400, 3.401(a)(1), 3.350(b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to July 1980, from October 1983 to February 1984, and from September 1994 to October 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision. In March 2011, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. In a March 2015 letter, the Board informed the Veteran that the Veterans Law Judge who conducted the March 2011 hearing has since left employment with the Board and offered him another hearing. In March 2015 written correspondence, the Veteran declined another hearing. Accordingly, no further hearing will be scheduled in this matter. In November 2015, the Board granted a 70 percent rating for the Veteran’s PTSD and granted the Veteran SMC based on the need for regular aid and attendance for the period prior to June 11, 2015. The November 2015 rating decision on appeal implemented the Board’s Decision, and assigned a January 2010 effective date for the 70 percent rating for PTSD and granted service connection for SMC based on aid and attendance, effective May 2, 2006. The Veteran filed a Notice of Disagreement (NOD) with the effective date of his PTSD rating and the date he was awarded SMC. A subsequent April 2016 rating decision granted the Veteran’s request for an earlier effective date for his PTSD rating as of August 12, 2005, and denied his request for an earlier effective date for his award of SMC based on aid and attendance. Earlier Effective Date The method of determining the effective date of an increased rating is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award “shall not be earlier than the date of receipt of application thereof.” 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim. 38 U.S.C. § 5110(b)(2)(C)(3). 38 C.F.R. § 3.400(o)(2). The phrase “otherwise, date of receipt of the claim” applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Moreover, the term “increase” as used in 38 U.S.C. § 5110 and 38 C.F.R § 3.400 means an increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511, 519 (1997). 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. Prior to March 24, 2015, VA recognized formal and informal claims. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply only to claims filed on or after March 24, 2015. Because this claim was initiated prior to that date, the amended regulations do not apply. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In this matter, the Veteran contends he is entitled to an earlier effective date for his 70 percent disability rating for his service connected PTSD, which was granted as of August 12, 2005, and an earlier effective date for the grant of his SMC housebound status, which was granted effective May 2, 2006. PTSD The evidence of record shows that the Veteran’s request for an increased rating for his service connected acquired psychiatric disorder (previously diagnosed and rated as dysthymic disorder) was received by VA on May 2, 2006. Thus, based on the provisions of § 3.4000(o)(2), the earliest date on which an increased rating can be granted is May 2, 2005. As the Veteran is in receipt of the 70 percent evaluation as of August 12, 2005, the only period before the consideration of the Board is from May 2, 2005, to August 12, 2005. In April 2005, a VA medical center (VAMC) record showed the Veteran to have had feelings of more depression and poor concentration. He reported being isolated. He stated he had fair motivation but had low frustration tolerance. He stated life was not going very well. In May 2005, a VAMC record indicated that the Veteran was very upset and could not relax. He was noted to be irritable all the time. He stated he could not lie down and relax. The examiner noted that the Veteran had very complicated, resistant depression complicated by multiple medical problems. In July 2005, a VAMC record showed that the Veteran’s current symptoms were that of low mood, guilt, feelings of uselessness, poor concentration, hopelessness, loss of pleasure, poor libido, no appetite, and poor sleep. He also reported hopopmic hallucinations and feelings of paranoia. He was oriented to time, place, and personal information. He was dressed appropriately with good hygiene and had normal tone and decrease rate of speech. His affect was restricted range with depressed tone and his mood was “feeling down.” Based on the foregoing, the Board finds that resolving all reasonable doubt in favor of the Veteran, the evidence of record supports a finding of an effective date for the 70 percent rating of his PTSD as of May 2, 2005, one year prior to the date of his claim for an increased rating. Based on the VAMC mental health treatment records contained in the Veteran’s file, the Board finds that the evidence demonstrates that a factually ascertainable increase in the Veteran’s disability occurred within the one-year period preceding the date of the May 2, 2006, receipt of a claim for increased compensation. As the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, the Board finds that May 2, 2005, is the earliest date upon which it became factually ascertainable that the Veteran’s PTSD had increased in severity and, as such, his 70 percent rating is effective at that time. The May and July 2005 VAMC records show that the Veteran began experiencing an increase in his PTSD symptomology at that point, and reported experiencing hallucinations, paranoia, increased irritability, and other symptomology commiserate with a 70 percent rating. However, the Board notes that an effective date prior to May 2, 2005, is not warranted, as May 2, 2005, is the earliest date possible for the increased rating. In so finding, the Board notes that there is no communication or document in the Veteran’s file, or identified by the Veteran, which requests an increase in the rating for his acquired psychiatric disorder prior to his May 2006 correspondence. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that the preponderance of the evidence is against the assignment of an effective date prior to May 2, 2005, for the 70 percent rating for PTSD. In reaching this decision, the Board has favorably applied the benefit-of -the-doubt doctrine. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SMC- Aid & Attendance The Veteran also contends that he is entitled to an effective date prior to May 2, 2006, for the award of SMC based on aid and attendance. As stated above, generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. The law also provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received by the VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)(b); 38 C.F.R. § 3.400(o)(1)(2). SMC at the aid and attendance rate is payable when a Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). A number of factors are to be accorded consideration in determining the need for regular aid and attendance, including: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350(b), 3.352(a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). Although the Veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, it is logical to infer there is a threshold requirement that at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). In this matter, VA interpreted the Veteran’s May 2, 2006, correspondence requesting an increase in his service connected disabilities to include a request for SMC on the basis of being housebound or the need for regular aid and attendance. Thus, the issue before the Board is whether was factually ascertainable one year prior to May 2, 2006, that the Veteran required the regular need for aid an attendance. As of May 2, 2006, the Veteran was service connected for the following disabilities: PTSD, urinary urgency and frequency, glaucoma, sleep apnea, lumbar spine sprain, acne/sarcoidosis, cervical spine strain, hypothyroidism, and right and left knee degenerative joint disease. In this instance, the Board finds that as of April 3, 2006, it became factually ascertainable that the Veteran required the regular need for aid an attendance. In March 2006, VA received a prescription for the Veteran to receive a wheelchair, a mattress, and two pillows medically necessary for his fibromyalgia. On April 3, 2006, VA received a prescription from the Veteran’s treating private physician which stated the Veteran needed a chair lift for his car as he had lost the use of his hands due to his osteoarthritis, gout, rheumatoid arthritis, and fibromyalgia. An April 11, 2006, VAMC record noted that the Veteran had a loss of feeling in his legs from knees to feet. He also noted back pain. Upon examination, the physician noted pain was out of proportion to his examination. As such, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran was in need of regular aid and attendance of another person due solely to his service-connected disabilities as of the April 3, 2006, notification that he had lost the use of his hands due, in part, to his service connected fibromyalgia. It is the Board’s conclusion that such a loss of function would necessarily result in the need by the Veteran for regular aid and attendance in his activities of daily living. Prior to April 3, 2006, however, the record is absent an indication that the Veteran was in need of regular aid and attendance of another person due solely to his service-connected disabilities and there is no indication or record which showed the Veteran sought entitlement to SMC compensation prior to May 2, 2006. Indeed, prior to his May 2, 2006, correspondence, the Veteran’s communications with VA was regarding his request for special adaptive equipment regarding his wheelchair and scooter. There is no indication in the Veteran’s file, and the Veteran has not identified any information, which would establish that it became factually ascertainable that the Veteran required regular aid and attendance prior to April 3, 2006, or could be reasonably interpreted to be a claim for such compensation. (Continued on the next page)   The Board again notes that the pertinent legal authority governing effective dates is clear and specific, and that the Board is bound by that authority. The Board finds that the preponderance of the evidence is against the assignment of an effective date prior to April 3, 2006, for the grant of SMC due to the regular need of aid and attendance. In reaching this decision, the Board has favorably applied the benefit-of -the-doubt doctrine. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel