Citation Nr: 1801821	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-17 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) due to being housebound, for accrued benefits, prior to November 26, 2008. 


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Esq. 


WITNESS AT HEARING ON APPEAL

The Appellant



ATTORNEY FOR THE BOARD

M. Giaquinto, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from December 1959 to November 1968, and from May 1974 to November 1975.  The Veteran died in August 2012, and the Appellant is his surviving spouse and has been substituted as the claimant on appeal. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 

In October 2013, a hearing was held at the RO before a Veterans Law Judge (VLJ).  Unfortunately, technical difficulties prevented a written transcript of this hearing from being produced.  As such, the Appellant was provided another hearing before the undersigned VLJ via video conference in May 2014.  A transcript of this hearing is of record. 

A claim for SMC benefits for accrued benefits purposes was denied by the Board in a July 2015 decision and the Appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  In a January 2016 order, the Court granted a Joint Motion for Remand (JMR) that vacated the July 2015 Board decision and remanded that decision for compliance with instructions-limited to the Board's July 2015 denial of entitlement to SMC under 38 U.S.C. § 1114(s) due to being housebound-provided in the JMR.  

The Board revisited the claim in July 2016.  At issue was whether the Veteran met the statutory requirements under 38 U.S.C. § 1114(s).  In pertinent part, the statute provides that if a Veteran has one service-connected disability that is rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent or more, VA will consider the Veteran to have met the status of "permanently housebound."  38 U.S.C. § 1114(s).  After a close review of the record, the Board determined that it was at least as likely as not that the Veteran's August 2003 entitlement to total disability based on individual unemployability (TDIU) was solely the result of service-connected PTSD.  In light of the Court's rulings in Bradley v. Peake, 22 Vet. App. 280 (2008), and Buie v. Shinseki, 24 Vet. App. 242 (2010), this fulfilled the requirement in 38 U.S.C. § 1114(s) for a service-connected disability rated as total.  Combined with a service-connected low back disability, rated at 60 percent disabling, the Veteran met the statutory requirements for SMC under 38 U.S.C. §1114(s). 

In August 2016, the RO issued a rating decision effectuating the Board's July 2016 decision.  The RO granted entitlement to SMC, dating back to November 26, 2008, the date of the Court's decision in Bradley.  The Appellant contends that she is entitled to an earlier effective date of the award, going back to August 2, 2003, the effective date of the Veteran's entitlement to TDIU. 


FINDINGS OF FACT

The Veteran met the criteria for special monthly compensation by reason of housebound status from August 2, 2003.  


CONCLUSION OF LAW

The Appellant is entitled to an effective date of August 2, 2003, but no earlier, for the claim of entitlement to special monthly compensation by reason of housebound status.  38 U.S.C. §§ 1114, 5110; 38 C.F.R. 3.400, 3.401. 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Entitlement to an Earlier Effective Date

Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim for increase of compensation, dependency and indemnity compensation (DIC), or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application or claim.  38 U.S.C. § 5110(a). 

Generally, the effective date of a claim for SMC is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o).  However, when an award of compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional compensation payable by reason of housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established.  38 C.F.R. § 3.401(a). 

When a liberalizing change in law or regulation creates a new benefit or basis of entitlement, the effective date for entitlement is assigned in accordance with the facts found, but usually not earlier than the effective date of the new law or administrative change.  38 U.S.C. § 5110(g); 38 C.F.R. § 3.114.  In the case where a decision of the Court invalidates VA's interpretation of a statute or regulation, the decision does not have retroactive effect in relation to prior final adjudications of claims, but should be given retroactive effect as it relates to claims still open on direct review.  See VAOPGCPREC 9-94.  

The Veteran filed a claim for SMC by reason of housebound status on July 31, 2008.  The RO, in its August 2016 rating decision, claimed that VA regulations were changed on November 26, 2008 to allow a disability for which TDIU was granted to serve as the single disability evaluated as 100 percent disabling to meet the schedular requirements under 38 U.S.C. § 1114(s).  Accordingly, the RO granted entitlement with an effective date tied to what it considered to be the date of the change in regulation.  Presumably, the RO based this date off the date of the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008).  

When the Court issues a decision invalidating VA's interpretation of a statute or regulation, this does not amount to a change in statute or regulation.  Indeed, when the Court issues such a ruling, it is, in effect, informing VA that it has been misapplying the existing statute or regulation.  Therefore, the RO is incorrect to consider the date of the Court's decision in Bradley as an effective date based on a change in VA regulation.  

By rating decision of September 2008, the Veteran was granted TDIU from August 2, 2003.   He met the statutory requirements for SMC, by reason of housebound status, at the time of the claim.  But for VA's interpretation of 38 U.S.C. § 1114(s)-later determined by the Court to be incorrect-the Veteran would have been entitled to SMC benefits from the date of his claim.  Accordingly, based on the guidance offered in VAOPGCPREC 9-94, the effective date of the claim should be retroactive to the date the Veteran met the criteria for the award, now August 2, 2003, because at as a result of the award of TDIU, which counts as a single disability under the Bradley and had other service-connected disabilities that (1) involve a different bodily system than the 100 percent disability and (ii) are rated at a combined disability rating of 60 percent or higher.  38 U.S.C.A. § 1114(s).  



ORDER

Entitlement to an effective date of August 2, 2003, but no earlier, for the claim of entitlement to special monthly compensation by reason of housebound status is granted. 



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs