Citation Nr: 20045030 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 19-28 842 DATE: July 7, 2020 ORDER An effective date of May 21, 2018 is granted for the award of special monthly compensation (SMC) based on the Veteran’s need for regular aid and attendance. FINDINGS OF FACT 1. A complete and proper intent to file a claim for VA benefits was received on June 8, 2018. 2. It is at least as likely as not that the Veteran met the criteria for entitlement to SMC based on the need for regular aid and attendance as of May 21, 2018. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an effective date of May 21, 2018 for the award of SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.350, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to September 1969, to include service in Vietnam. He also had service in the Army National Guard, to include a period of active duty for training from March 1967 to July 1967. His decorations include the Vietnam Service Medal, the Vietnam Campaign Medal, and the Good Conduct Medal This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an effective date prior to September 12, 2018 for the award of SMC based on the Veteran’s need for regular aid and attendance. The Veteran seeks an effective date prior to September 12, 2018 for the award of SMC based on his need for the regular aid and attendance of another person. Relevant to this case, 38 C.F.R. § 3.401(a)(1) provides that the effective date of an award of SMC based on the need for regular aid and attendance of another person, except as provided in 38 C.F.R. § 3.400(o)(2), will be the date of receipt of the claim or the date entitlement arose, whichever is later. The effective date for an award of an increased rating will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, three possible effective dates may be assigned depending on the facts of an increased rating case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or, (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Regulations allow a claimant to submit an “intent to file a claim.” VA may recognize the date of receipt of an intent to file as the date of claim so long as VA receives the properly completed claim form within a year. 38 C.F.R. § 3.155(b). A veteran shall be considered to be in need of regular aid and attendance if: he/she is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See also 38 C.F.R. § 3.351(c). In this case, VA received a VA Form 21-0966, intent to file a claim for compensation, on June 8, 2018. In a September 2018 rating decision, the RO granted SMC based on the Veteran’s need for the regular need for aid and attendance of another person, with an effective date of September 12, 2018. That determination was based on a September 12, 2018, VA Form 21-0960B-1 by Dr. J.A., who referenced an August 8, 2018 private treatment record noting the Veteran’s report that he was fairly impaired with respect to his ability to perform activities of daily living due to dyspnea with ambulation of 20 feet. Dr. J.A. assessed that the Veteran’s service-connected non-Hodgkin’s lymphoma was productive of weakness, easy fatigability, lightheadedness, shortness of breath, dyspnea on mild exertion, and dyspnea at rest. The Veteran’s representative has asserted that an earlier effective date is warranted because the Veteran filed a VA Form 21-0966 in June 2018, and an August 2018 private treatment record noted that the Veteran was fairly impaired in terms of his ability to perform activities of daily living due to his dyspnea that was caused by the Veteran’s non-Hodgkin’s lymphoma. See November 2018 representative statement. After review of the record, the Board finds that the evidence supports an effective date of May 21, 2018 for the award of SMC based on the Veteran’s need for the regular aid and attendance of another person. The Veteran submitted a May 21, 2018 VA Form 21-0960B-1 by Dr. J.A., who assessed that the Veteran’s service-connected non-Hodgkin’s lymphoma was productive of weakness, easy fatigability, shortness of breath, and dyspnea on mild exertion. Dr. J.A. noted that the Veteran had no stamina and had easily fatigability that was not resolved with rest. It was further noted that the Veteran could not walk any distance because any exertion caused shortness of breath. The May 2018 VA Form 21-0960B-1 contains an assessment of the Veteran’s impairment very similar to that contained in the September 2018 VA Form 21-0960B-1, upon which the RO relied to grant SMC. Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that it is factually ascertainable that the Veteran had a need for regular aid and attendance as of May 21, 2018. Because the need is shown to have arisen within the one-year period prior to the date of claim (June 8, 2018), and was not factually ascertainable prior to that one-year period, an effective date of May 21, 2018 is warranted. 38 C.F.R. § 3.400(o)(2). To that extent, the appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.