Citation Nr: 1807220	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-14 500	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to an earlier effective date than March 28, 2012, for compensation pursuant to38 U.S.C. § 1151 for bowel impairment, loss of sphincter control. 

2.  Entitlement to an earlier effective date than March 28, 2012, for the grant of special monthly compensation (SMC) at the R-1 rate based on the need for aid and attendance.


REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

Ashley Castillo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1972 to August 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  In that decision, the RO granted compensation pursuant to38 U.S.C. § 1151 for bowel impairment, loss of sphincter control, and SMC at the R1 rate based on the need for aid and attendance, both effective March 28, 2012.  In a September 2012 statement, the Veteran disagreed with the March 28, 2012, effective date as to bowel impairment, loss of sphincter control and SMC at the R1 rate based on the need for aid and attendance.

The issue of entitlement to an earlier effective date than March 28, 2012, for the grant of SMC at the R-1 rate based on the need for aid and attendance is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On March 28, 2012, the Veteran's claim for entitlement to compensation pursuant to 38 U.S.C. § 1151 for bowel impairment, loss of sphincter control was received.  

2.  In the September 2012 rating decision, the RO granted entitlement to compensation pursuant to 38 U.S.C. § 1151, for bowel impairment, loss of sphincter control, effective March 28, 2012.

3.  There is no evidence of any unadjudicated formal or informal claim of entitlement to compensation pursuant 38 U.S.C. § 1151 for bowel impairment, loss of sphincter control, prior to March 28, 2012.



CONCLUSION OF LAW

The criteria for an effective date earlier than March 28, 2012, for entitlement to compensation pursuant to 38 U.S.C. § 1151 for bowel impairment, loss of sphincter control, are not met.  38 U.S.C. §§ 5103 A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.326(a), 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

II.  Earlier effective Date

Generally, 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 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400.

Specifically with respect to compensation based upon disability caused by VA medical treatment pursuant to 38 U.S.C. § 1151, the effective date will be the date the injury or aggravation was suffered if the claim is received within one year of that date, otherwise the effective date will be the date of the receipt of the claim for such benefits.  38 C.F.R. § 3.400 (i)(1).  All effective date determinations must be based upon the facts found, unless otherwise specifically provided.  38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400.

VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the claim in this case was filed prior to that date, Septembers 2012, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case.

Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, 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. 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  (a) (in effect prior to March 24, 2015).

There is no set form that an informal written claim must take.  All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought.  Rodriguez v. West, 189 F.3d 1351 (1999).

Here, the Veteran asserts that the effective date of his bowel impairment, loss of sphincter control, should be December 1992, the date that his failed spinal fusions.
The evidence shows that in February 1988, the Veteran sought VA back treatment, for chronic back pain and in March 1988 he underwent a lumbar spine fusion.  See VA examination report dated September 1988.   
In November 1991, the Veteran had the hardware removed from his lumbar spine fusion.

In a December 1992 VA hospital summary, the VA physician noted that in December 1992, the Veteran underwent a L4 through S1 spinal fusion with spinous processes and allograft of bone.  The VA physician diagnosed "lumbar instability, failed fusion."  The VA physician indicated that the Veteran denied any bowel problems. 

Following, the December 1992 spinal fusion, the Veteran experienced severe back pain.  See VA treatment record dated September 1993. 

In September 1993, the Veteran filed a claim for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a failed back surgery; he indicated that he is confined in a wheelchair. 

In an April 1995 examination report, the Veteran complained of severe back pain and inability to use his right and left lower extremities.   The Veteran also reported that he occasional urgency with his bladder and stools.  The April 1995 VA examiner found that the Veteran's back disability and loss of use of his lower extremities were due to failed spinal fusion.

In a May 1995 rating decision, the RO granted entitlement to compensation pursuant to 38 U.S.C. § 1151 for L4-5 pseudoarthrosis due to multiple fusion attempts and granted entitlement to compensation pursuant to 38 U.S.C. § 1151 for loss of use of lower extremities due to failed fusions.  Additionally, the Veteran was awarded entitlement to SMC pursuant to 38 U.S.C. §1114 for loss of use of feet. 

In May 2002, the Veteran submitted a claim for entitlement to SMC based on the need of aid and attendance due to his L4-5 pseudoarthrosis and loss of use of lower extremities.

In December 2002, the Veteran filed a claim for "creative organ/ impotency."  He explained that he had erectile dysfunction and bladder problems.

In an April 2003 VA examination report, the examiner indicated that since June 2001, the Veteran requires daily suppositories and Metamucil for bowel movements.  Furthermore, the examiner indicated that the Veteran's urinary incontinence and impotency conditions were due to the failed spinal fusions.

In a September 2003 rating decision, the RO granted entitlement to compensation pursuant to 38 U.S.C. § 1151 for urinary impotency; entitlement to compensation pursuant to 38 U.S.C. § 1151 for impotency; and entitlement to SMC pursuant to 38 U.S.C. §1114 for loss of use of a creative organ. 

In March 2012, the Veteran filed claim for compensation pursuant to 38 U.S.C. § 1151 for bowel impairment and entitlement to SMC at the R-1 rate. 

In a September 2012 rating decision, the RO granted compensation pursuant to 38 U.S.C. § 1151, for bowel impairment, loss of sphincter control, and SMC at the R-1 rate, both effective March 28, 2012.

In a September 2012 statement, the Veteran disagreed with the March 28, 2012, effective date.  The Veteran explained that the effective date should be date of his failed spinal fusions in December 1992.

For the reasons below, the Board finds entitlement to an earlier effective date than March 28, 2012, for compensation pursuant to 38 U.S.C. § 1151 for bowel impairment, loss of sphincter control, is not warranted. 

The evidence above illustrates that in December 1992, the Veteran had failed spinal surgery.  In September 1993, the Veteran filed a claim for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a failed spinal surgery.  In the May 1995 rating decision, the RO granted compensation pursuant to 38 U.S.C. § 1151 for a back disability and loss of use of lower extremities due to failed spinal fusions.  Thereafter, in September 1995 and in April 2003 VA examinations, the VA examiners indicated that the Veteran had bowl impairment problems.  Specifically, the September 1995 examiner indicated that the Veteran has occasional urgency with stools and the April 2003 VA examiner documented that the Veteran was required to take daily medication for bowel movements.  Thus, the evidence reveals that the Veteran's injury or aggravation (i.e. bowel impairment, loss of sphincter control) caused by VA medical treatment pursuant to 38 U.S.C. § 1151 was in September 1995 or, at the latest in April 2003.  However, the Veteran did not file a claim for compensation pursuant to 38 U.S.C. § 1151 for bowel impairment and or loss of sphincter within one year of the injury or aggravation.  Rather, the Veteran did not file a claim pursuant to 38 U.S.C. § 1151 for bowel impairment until March 28, 2012.  

To this end, there is no formal claim, informal claim, or communication that indicates an intention to apply for a claim for compensation pursuant to 38 U.S.C. § 1151 for bowel impairment prior to March 28, 2012.  

Notably, the Veteran's VA examination reports that document that the Veteran's complaints of bowel impairment problems, cannot by themselves serve as an informal claim for compensation under 38 U.S.C. § 1151.  As set forth above, an informal claim must be a communication from the Veteran or his representative, and in this case, there was no such communication until March 28, 2012.  See Mansfield v. Peake, 525 F.3d 1312, 1317 (Fed. Cir. 2008) (noting that a claimant must show "an intent to file a claim for disability or for death benefits" (citing 38 C.F.R. § 3.154 (1990)); King v. Shinseki, 23 Vet.App. 464, 469 (2010) (Additionally, the intent to file a claim must be clear; "[E]xpressing a wish or desire to obtain [VA benefits] received in medical reports by VA physicians" cannot constitute an informal claim); KL v. Brown, 5 Vet. App. 205, 208 (1993) (the mere presence of medical evidence does not establish an intent on the part of the veteran to seek secondary service connection for the condition).

The Board notes that 38 C.F.R. § 3.157(b), in effect prior to March 24, 2015, states an exception to this rule for certain reports of examination or hospitalization, but that provision is not for application in this case, as there was no previous grant or denial of compensation under 38 U.S.C. § 1151 for bowel impairment and loss of sphincter control.  See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed.Cir.2006) (stating that 38 C.F.R. § 3.157(b)(1) "makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability"); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed.Cir.2013) (§ 3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran's service-connected disability worsened since the time it was last evaluated because, "[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1)," creating an unnecessary and unwarranted adjudicative burden on VA); Bales v. Shinseki, No. 07-3668, 2009 U.S. App. Vet. Claims LEXIS 450 (mem dec) ("Clinical documentation cannot be construed as an informal claim when, as here, there has been no previous grant or denial of compensation for diplopia under 38 U.S.C. § 1151" (citing 38 C.F.R. § 3.157 (2008) (report of examination or hospitalization as a claim for an increase or to reopen)); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

For the foregoing reasons, the effective date for compensation pursuant to 38 U.S.C. § 1151 for bowel impairment, loss of sphincter is, appropriately March 28, 2012, the date of his claim.  Therefore, there is no basis upon which to justify granting an effective date earlier than March 28, 2012, and the appeal for an earlier effective date for compensation pursuant to 38 U.S.C. § 1151 for bowel impairment, loss of sphincter, is not warranted.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to an earlier effective date than March 28, 2012, for compensation under 38 U.S.C. § 1151 for bowel impairment and loss of sphincter control is denied.  


REMAND

The Veteran contends that an earlier effective date is warranted for the award of SMC at the R-1 rate.

The evidence shows that on March 28, 2012, the Veteran's claim for SMC at the R-1 rate was received.  The Veteran appealed this rating decision asserting entitlement to an effective date earlier than March 28, 2012, for SMC at the R-1 rate.  The Veteran asserts that the effective date of the SMC at the R-1 rate should be the date of his failed spinal fusions that occurred in December 1992.

In addition to the effective date regulations noted in the decision above, 38 C.F.R. § 3.401 (a)(1) provides that awards of aid and attendance or housebound benefits, will be effective except as provided in § 3.400(o)(2), the date of receipt of claim or date entitlement arose, whichever is later.  Significantly, the regulation provides an exception to this rule, which reads, "However, when an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established."

A review of the September 2012 rating decision and the April 2014 Statement of the Case (SOC) illustrates that the AOJ did not consider the provision of 38 C.F.R. § 3.401 (a)(1) when adjudicating the Veteran's claim for entitlement to an earlier effective date than March 28, 2012, for the grant of SMC at the R-1 rate based on the need of aid and attendance and.  To this end, consideration pursuant to 38 C.F.R. § 3.401 (a)(1) is central to the Veteran's claim remaining on appeal. 

Consequently, in order to afford the Veteran due process, the Board finds that a remand is necessary for the AOJ to address entitlement to an earlier effective date than March 28, 2012, for the grant of SMC at the R-1 rate based on the need of aid and attendance pursuant to 38 C.F.R. § 3.401 (a)(1) in the first instance.  Sprinkle v. Shinseki, 733 F.3d 1180, 1185 (Fed. Cir. 2013) (veterans and other claimants are entitled to due process during VA proceedings).

Accordingly, the claim remaining on appeal is REMANDED for the following action:

Readjudicate the claim of entitlement to an earlier effective date than March 28, 2012, for the grant of SMC at the R-1 rate based on the need for aid and attendance., to include specific consideration of 38 C.F.R. § 3.401 (a)(1).  If any benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond.  Then return the case to the Board for further appellate review, if otherwise in order. 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the Court.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b).


Department of Veterans Affairs