Citation Nr: 1815565	
Decision Date: 03/16/18    Archive Date: 03/23/18

DOCKET NO.  13-06 669	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an effective date prior to September 30, 2002, for the award of special monthly compensation (SMC) based on housebound status. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Price, Associate Counsel

INTRODUCTION

A motion to advance this appeal on the Board's docket has been raised by the Veteran.  The undersigned is granting the motion and advancing the appeal on the docket upon financial hardship.  38 C.F.R. 20.900(c).

The Veteran served on active duty in the U.S. Marine Corps from October 1968 to July 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

This case has a unique procedural history.  A January 2004 rating decision denied entitlement to special monthly compensation based on aid and attendance/housebound status.  The April 2004 rating decision granted entitlement to special monthly compensation based on aid and attendance, effective August 11, 2003.  The rating code sheet, however, indicated that the Veteran was being paid at the housebound rate, not the aid and attendance rate.  

The Board remanded the appeal in May 2011 and requested the RO furnish the Veteran a Statement of the Case as to his claim for an earlier effective date for the award of special monthly compensation based on the need for aid and attendance.  The February 2013 Statement of the Case indicated that the text of the April 2004 rating decision and the subsequent notification letter incorrectly informed the Veteran that he was granted special monthly compensation at the aid and attendance rate.  The Veteran was actually entitled to, and had been paid, benefits at the housebound rate. 

In a February 2013 rating decision, the RO confirmed the Veteran's SMC rate as being the housebound rate.  That same month, the Veteran filed a Notice of Disagreement to the RO's "denial of [his] claim for a higher level of SMC."  In August 2013, the RO issued a Statement of the Case continuing his SMC at the housebound rate.  The Veteran did not file a substantive appeal following the August 2013 Statement of the Case.  Thus, entitlement to a higher rate of SMC is not on appeal.  

An October 2013 rating decision granted an earlier effective date of September 30, 2002, for entitlement to special monthly compensation based on housebound status. 

In an April 2014 Board decision, the claim for an effective date earlier than September 30, 2002, for the award of SMC based on housebound criteria was denied.  This was a final decision as to the earlier effective date claim.  

Lastly, a May 2017 rating decision denied entitlement to special monthly compensation based on the need for aid and attendance.  At the time of this decision, the appeal period has not run as to this issue.  


FINDING OF FACT

There is currently no justiciable case or controversy for active consideration by the Board on the issue of entitlement to an earlier effective date for a grant of special monthly compensation based on the need for aid and attendance. 


CONCLUSION OF LAW

The claim for an earlier effective date for a grant of special monthly compensation based on housebound status is dismissed.  38 U.S.C. §§ 511, 7104, 7105 (2012); 38 C.F.R. §§ 3.109, 19.35, 20.101(d), 20.200, 20.201, 20.202, 20.302 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

In order for the Board to have jurisdiction to review an RO decision, there must be a timely substantive appeal.  First, a written NOD must be filed within one year after the date of notice of the RO decision.  Next, the RO must issue a statement of the case on the matters being appealed.  Finally, the appeal must be perfected by the filing of a VA Form 9 or other written equivalent thereof, indicating an intention to seek appeal to the Board.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302.

Here, the Veteran's earlier effective date claim for SMC was finally decided by the Board in its April 2014 decision.  There has been no subsequent claim or appeal as to this issue.  In other words, the RO erroneously issued another certification of appeal to the Board, and the Board does not have jurisdiction to decide this appeal. 

It is important to note that the certification of appeal is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue.  38 C.F.R. § 19.35.  The Board has not taken any further action to explicitly suggest to the Veteran that the earlier effective date issue is on appeal before it.  In sum, the Board does not have jurisdiction of the earlier effective date claim for SMC, and the appeal must be dismissed. 


ORDER

The appeal as to the issue of entitlement to an earlier effective date for a grant of special monthly compensation based on housebound status is dismissed.



____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs