Citation Nr: 1808310 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 16-07 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than April 22, 2013, for the grant of a special monthly pension (SMP) based on the need for aid and attendance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the VA RO that granted SMP based on the need for aid and attendance effective August 29, 2013. A July 2015 rating decision subsequently granted an effective date of April 22, 2013 for the award of SMP based on the need for aid and attendance. This case was originally before the Board in August 2017, when the Veteran's claim was remanded for further development. A December 2017 supplemental statement of the case was issued and the case is once again before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT On October 18, 2012, the Veteran filed a claim of entitlement to SMP based on the need for regular aid and attendance. CONCLUSION OF LAW The criteria for an earlier effective date of October 18, 2012, for the award of SMP based on need for regular aid and attendance are met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 3.401 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Earlier Effective Date A February 2014 rating decision established entitlement to SMP due to need for aid and attendance, effective August 29, 2013. A July 2015 rating decision subsequently granted an earlier effective date of April 22, 2013. The Veteran asserts that he is entitled to an effective date earlier than April 22, 2013. Generally, the effective date for an award of SMP is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.401. If, however, the evidence shows that the increase in disability occurred prior to the date of receipt of claim, then VA may assign the earliest date when it is ascertainable that the increase occurred, as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). The Board concludes that assignment of an effective date of October 18, 2012 is supported by the record. In a statement received by the RO on October 18, 2012, the Veteran clearly indicated that he was interested in aid and attendance. He requested information as to how to receive this benefit and requested a response from the RO. A subsequent request for aid and attendance was received by the RO on April 22, 2013. As noted above, the RO assigned an effective date of April 22, 2013 based on this claim, in its July 2015 rating decision. After careful consideration of the record, the Board has determined that an effective date of October 18, 2012 is appropriately assigned for special monthly pension based upon the need for aid and attendance. It is clear that the Veteran's claim was received on that date. Entitlement to SMP based on the need for aid and attendance can be shown with evidence that the veteran regularly requires the assistance of another person to conduct routine activities necessary for daily life. 38 U.S.C.§ 1521(d) (2012). A person is considered to need regular aid and attendance if he is a patient in a nursing home due to mental or physical incapacity; or helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another individual; or establishes a factual need of aid and attendance under 38 C.F.R. § 3.352(a) criteria. A determination as to factual need of aid and attendance must be based on actual requirements of personal assistance from others. Consideration is given to such conditions as: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; 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 the claimant from the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which through its essential character actually requires that the claimant remain in bed. It does not require that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). The evidence clearly shows that the Veteran was in need of aid and attendance as of the date of his October 18, 2012 filing. There is nothing to suggest that the findings noted in the September 2013 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance were not present at the time of his October 2012 claim. The effective date of a pension award must be the later of the date of filing of the claim (October 18, 2012) or the date on which entitlement is shown (arguably years before the claim was filed). In concluding that there was evidence of need of aid and attendance even before October 18, 2012, the Board has viewed such evidence as favorably as the law permits. See 38 U.S.C.A. § 5107(b). Doing so enables the assignment of an earlier effective date of October 18, 2012, because if the Board was to find entitlement to need of aid and attendance was first met as of any date after October 18, 2012, the law would require assignment of such later date as the effective date, which would be less favorable to the Veteran. The Board has also considered that under 38 U.S.C. § 5110(b)(2) (2012) and 38 C.F.R. § 3.400(o)(2) (2017), the effective date for a claim for an increased evaluation (to include SMP) can be up to one year prior to the date of claim. However, this provision only applies when it is factually ascertainable that the underlying disability increased during that one year period (or at least some part of the increase occurred during that period). In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010), that 38 U.S.C. § 5110(b)(2) requires that "an increase in a Veteran's service-connected disability must have occurred during the one year period prior to the date of the Veteran's claim in order to receive the benefit of an earlier effective date." The Federal Circuit determined that the legislative history made clear that the purpose of this provision was to provide a one-year grace period for filing a claim following any increase in severity of a service-connected disability. Id. at 983. In other words, if the increase in severity occurred more than one year before the date of claim the year prior to the application for benefits, 38 C.F.R. § 3.400(o)(2) does not apply. The Board has considered the evidence in the one year period prior to his October 18, 2012 claim. In fact, the Board remanded in August 2017 to obtain treatment records during this time period. The evidence obtained did not include medical evidence between October 18, 2011 and October 18, 2012 which demonstrates that it was factually ascertainable that the Veteran's underlying disability had increased during that one year period (or at least some part of the increase occurred during that period). For example, the Board has considered a May 2000 letter from the Veteran's private physician which noted that the Veteran had a myriad of health complaints and generally deteriorating condition since 1994. The doctor noted that the Veteran was under the care of approximately 120 physicians and had weekly physician appointments. The physician indicated that the Veteran was having increasing difficulty with his activities of daily living and was dependent on his wife for dressing and feeding. This evidence shows the Veteran's condition was deteriorating well over a year before he filed his most recent SMP claim. As such, the applicable law does not allow an award of an effective date prior to October 18, 2012. The Board concludes that an earlier effective date of October 18, 2012, but no earlier, is warranted. As the Board has granted the claim, it is evident that sufficient evidentiary development has occurred to enable such a resolution. Thus, no further discussion is warranted as to compliance with the duties to notify or assist. ORDER An earlier effective date of October 18, 2012, for the grant of SMP based on need of aid and attendance is granted. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs