Citation Nr: 18125717 Decision Date: 08/10/18 Archive Date: 08/10/18 DOCKET NO. 12-08 339A DATE: August 10, 2018 ORDER An earlier effect date prior to July 10, 2009, for the grant of special monthly compensation (SMC) based on aid and attendance is denied. A higher level of special monthly compensation (SMC), of 38 U.S.C. § 1114(o), is granted. Entitlement to specially adapted housing is granted. Entitlement to a special home adaptation grant is denied. The substantive appeal for the February 10, 2012, Statement of the Case was not timely; the appeal is denied. FINDINGS OF FACT 1. Prior to July 10, 2009, the Veteran is not shown to have functional impairment due to his service-connected disabilities such that he would be unable to accomplish ordinary daily living activities without assistance. 2. The Veteran’s service-connected lumbar spina bifida, tethered spinal cord syndrome, results in loss of use of both lower extremities together with loss of anal and bladder sphincter control. 3. The Veteran has permanent and total service-connected disabilities that giving him the benefit of the doubt not result in the loss of use of the bilateral lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 4. As entitlement to specially adapted housing is granted, the Veteran is not entitled to a special home adaptation grant. 5. The Veteran did not submit a timely substantive appeal for the February 10, 2012, statement of the case. CONCLUSIONS OF LAW 1. Prior to July 10, 2009, the criteria for an award of special monthly compensation based on the need for regular aid and attendance and/or housebound status have not been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352(a) (2017). 2. The criteria for special monthly compensation pursuant to 38 U.S.C. § 1114(o) have been met. 38 U.S.C. § 1114 (o) (2014); 38 C.F.R. §§ 3.350, 3.352 (2017). 3. Giving the Veteran the benefit of the doubt, the criteria for specially adapted housing are met. 38 U.S.C. §§ 2101, 5107 (2012); 38 C.F.R. §§ 3.102, 3.809 (2009, 2011). 4. The criteria for entitlement to a special home adaptation grant are not met. 38 U.S.C. § 2101 (2012); 38 C.F.R. § 3.809a (2009, 2011). 5. The criteria for a timely substantive appeal have not been met. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1969 to May 1971. The Veteran is already in receipt of the maximum 100 percent combined schedular rating from August 2002. 1. Entitlement to an earlier effect date prior to July 10, 2009, for the grant of special monthly compensation (SMC) based on aid and attendance. The Veteran contends that prior to July 10, 2009, SMC based on aid and attendance is warranted. In a January 2010 rating decision, the RO previously granted that benefit from August 6, 2009. Then in a February 2012 rating decision, it granted it from July 10, 2009, the date of his claim for aid and attendance benefits. In general, for disability compensation based on an original claim or a claim for increase will be the date of the “date of receipt of claim, or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400. July 10, 2009, is the date of receipt of claim. The Veteran has claimed that an effective date of August 2002 is warranted (from when he became in receipt of a combined 100 percent disability rating). To the extent that the Veteran may be claiming that this should be treated as an increased rating claim under 38 C.F.R. § 3.400(o), the Board finds that the evidence of record would not support granting aid and attendance prior to July 10, 2009. The Board find that based on the evidence of record it was not factually ascertainable prior to July 10, 2009, that aid was warranted. Similarly, even if, for the sake of argument, the Board were to accept the Veteran’s claim that there was an outstanding aid and attendance claim stemming from his initial increased rating claim for his service-connected spina bifida, the Board would still find that the evidence of record would not support granting benefits prior to July 10, 2009, as such need was not factually ascertainable prior to that time. Special monthly compensation at the aid and attendance rate is payable when the 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). Although the Veteran’s representative has indicated that private medical record from the Memorial Regional Hospital from April 2000 and November 1998 from South Dayton Urological Associates are supportive of the claim, the Board finds such evidence unconvincing. The November 1998 urological record only indicated that the Veteran required self-catherization and underwear padding – indicative of the Veteran being able to care for himself through such actions. The April 2000 hospital record only indicated bladder incontinence and difficulty ambulating – without providing any indication of a severity of loss of use of feet or in need of regular aid and attendance. In contrast, the August 2007 VA examination for the spine found that other than exercising, his service-connected back did not prevent him from performing activities of daily living. The Veteran reported being able to walk a quarter of a mile with the use of a cane. The January 2008 VA examination for the feet showed the Veteran able to walk 40 to 50 yards. The January 2008 general VA examination found that he was independent in activities of daily living, including toileting, eating, drinking, shaving, showering, and driving. The February 2008 VA genitourinary examination similarly found self-catheterization and change of urinary pads, and at most moderate limitation on activities of daily living. The first report of difficulty, claimed as loss of use of feet due to use of a scooter was received on August 6, 2009, in a private opinion of Dr. C. Bash. This was received after the July 10, 2009, effective date in question. Prior to July 10, 2009, the Veteran is not shown to have been unable to avoid the hazards of his daily environment or to have functional impairment such that he would be unable to accomplish ordinary daily living activities without assistance due to his service-connected disabilities. The Board notes that the Veteran does have some limitations, but the most probative evidence does not show that such limitations are caused by service-connected disabilities. Therefore, the Board must conclude that the Veteran is not entitled to special monthly compensation on account of the need for aid and attendance of another person or due to being housebound, due to service-connected disabilities, prior to July 10, 2009. 2. Entitlement to a higher rating for SMC. The Veteran, through his representative, asserts that his service-connected residuals of lumbar spina bifida, tethered spinal cord syndrome, results in loss of use of both lower extremities together with loss of anal and bladder sphincter; thus, he contends, special monthly compensation (SMC) at the (o) rate is warranted. SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350 and 3.352. The rate of SMC varies according to the nature of the veteran’s service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114(k). Higher levels of SMC are provided at 38 U.S.C. § 1114 (l), (m), (n), and (o). In the present case, the Veteran is in receipt of SMC at the (k) rate for loss of use of a creative organ and at the (l) rate for loss of use of both feet. SMC provided by 38 U.S.C. § 1114(o) is payable for multiple conditions, including paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle a claimant to the maximum rate under 38 U.S.C. § 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350(e)(2). In the present case, the Veteran has been awarded service connection for, among other disabilities, both bowel and bladder impairment. In a September 2009 Examination for Housebound Status and Permanent Need for Regular Aid and Attendance, a physician stated that the Veteran has neurogenic bowel and bladder impairment resulting in loss of sphincter control. Furthermore, on VA genitourinary and rectal examinations in February 2008, the Veteran was noted to wear an adult diaper on a frequent basis and have lax rectal sphincter tone. Based on these findings, the Board concludes the Veteran’s paralysis of both lower extremities together with loss of anal and bladder sphincter control warrant the award of SMC pursuant to 38 U.S.C. § 1114(o). 3. Entitlement to a special home adaptation grant or to specially adapted housing. The Veteran’s representative has argued that for specially adapted housing entitlement, as loss of use is established because the Veteran is unable to ambulate without aids. A certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who is receiving compensation for permanent and total service-connected disability, to include due to the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair or the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 38 U.S.C. § 2101; 38 C.F.R. § 3.809(a), (b). In this case, the Veteran is seeking special adaptive housing and/or special home adaptations to assist with his locomotion. He is service connected for the following disabilities: coronary artery disease (60 percent), neurogenic bladder (60 percent) pes cavus and hammer toes bilaterally (50 percent), whimsical bowel (30 percent), spina bifida and tethered spinal cord syndrome (20 percent), diabetes mellitus (20 percent), hypertension (10 percent), and erectile dysfunction (0 percent with SMC benefits). The Veteran has a combined 100 percent disability rating from August 19, 2002 and is found to meet prerequisite of a permanent and total rating. Upon review of the evidence of record, the Board finds that entitlement to specially adapted housing is warranted under the provisions of 38 U.S.C. § 2101(a) and 38 C.F.R. § 3.809(b). In particular, the Veteran’s service-connected spinal cord syndrome and foot disabilities, meet the criteria of 38 C.F.R. § 3.809(b). The Board finds that, giving the Veteran the benefit of the doubt, the evidence of record is at least in equipoise with respect to whether the service-connected lumbar spine and associated neurological disorders, as well as, foot disorder result in functional loss of use of the lower extremities so as to preclude locomotion without the aid of assistive devices. In an August 2009 private opinion, Dr. C. Bash reported loss of use of feet due to use of a scooter. Prior VA examinations also indicated that the Veteran required a cane to ambulate and had limited ambulation. Accordingly, the Board resolves doubt in favor of the Veteran and finds that the statutory and regulatory criteria for a certificate of eligibility for specially adapted housing are met and the benefit should be granted. 38 U.S.C. § 2101; 38 C.F.R. § 3.809. Under 38 U.S.C. § 2101(b) for a special home adaptation grant is warranted only where a veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101(a). As the Board is granting the Veteran’s claim for entitlement to specially adapted housing under section 2101(a)—the higher benefit. The claim for a special home adaptation under section 2101(b) must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 4. Whether the substantive appeal for the February 10, 2012, Statement of the Case was timely. Following the appeal of issues decided in a February 2009 rating decision (notification was sent March 18, 2009), the RO issued a February 10, 2012 statement of the case (SOC). The RO did not receive a substantive appeal from the Veteran until April 23, 2012, over 60 days after the issuance of the SOC. Even then, the substantive appeal only referenced his aid and attendance claim that had been covered by a separate SOC for that issue (for which the substantive appeal was timely). The Veteran has claimed that he should be given some consideration for the lateness of his submission of a substantive appeal as the appeal process is confusing and the VA adjudication process has taken years. The Board notes that prior to this timeframe, the Veteran was represented by a licensed attorney. An appellant has one year from notification of an RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). As the substantive appeal was received well over a year following the March 2009 rating decision notification and over 60 days after the February 10, 2012 SOC, the appeal was not perfected. The Board further notes that the Veteran has filed multiple timely substantive appeals as to other claims during this appeal process, indicating his knowledge of this need for timeliness. (Continued on the next page)   The Veteran did not perfect his appeal in a timely manner. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs