Citation Nr: 20046740 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-19 688 DATE: July 13, 2020 ORDER Entitlement to an effective date prior to February 11, 2011, for the award of special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDING OF FACT In March 2007, prior to the promulgation of a decision in the appeal, VA received written notification from the Veteran through his authorized representative that a withdrawal of the appeal for SMC based on the need for regular aid and attendance was requested; and, the date on which the Veteran’s new claim for SMC based on the need for regular aid and attendance was received, January 12, 2011, is later than the date on which entitlement to SMC based on the need for regular aid and attendance arose. CONCLUSION OF LAW The criteria for the assignment of an effective date of January 12, 2011, but no earlier, for the award of SMC based on the need for regular aid and attendance have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1981 to October 1981, from April 1984 to September 1984, and from November 1985 to March 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision rendered in September 2015. In a November 2017 decision, the Board denied entitlement to an effective date prior to February 11, 2011, for the award of SMC based on the need for aid and attendance. The Veteran thereafter appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2019 Memorandum Decision, the Court vacated the Board’s November 2017 decision as to this matter due to inadequate reasons and bases then remanded the matter to the Board for proceedings consistent with the Court’s decision. It was indicated that the Board had not provided any analysis concerning its determination that the March 29, 2007 Report of Contact constituted a valid withdrawal of the appeal and had not considered or discussed a temporal abnormality in the document identified by the Court. 1. The appeal for entitlement to an effective date prior to February 11, 2011, for the award of SMC based on the need for aid and attendance In July 2015, the Board granted entitlement to SMC based on the need for regular aid and attendance. In the September 2015 rating decision, the Agency of Original Jurisdiction (AOJ) effectuated that grant and assigned an effective date of February 11, 2011. The Veteran seeks the assignment of an effective date earlier than February 11, 2011, for this award of entitlement to SMC. Specifically, he contends that medical statements dated in 2004 and 2005 should be the effective date of the award of SMC. Generally, the effective date of an evaluation and award of compensation will be the date of receipt of the claim for increase or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). For this appeal, the terms “claim” and “application” mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). A claim may be filed by paper submission, electronic filing, or phone call. 38 C.F.R. § 3.155(b)(1); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (VA has the responsibility of determining when an informal claim has been filed). The law provides that a submission can only be read as a claim for benefits if the submission demonstrates the claimant’s intent to seek benefits for the identified symptoms or disability. See e.g., Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). Evidence of record showed that the Veteran submitted claims for increased compensation for service-connected disabilities in 2004, and the issue of entitlement to SMC based on aid and attendance was part and parcel of that prior claim for increased compensation. In an April 2005 rating decision, the AOJ denied entitlement to SMC based on aid and attendance. After the Veteran submitted a timely notice of disagreement in May 2005, the AOJ issued a statement of the case in November 2005 and he then timely perfected his appeal that same month. Evidence of record contained September 2004, October 2004, and June 2005 medical statements from the Veteran’s private physicians. Then, on March 29, 2007, the Veteran’s authorized representative appeared in person at VA and submitted a handwritten VA Form 119 (Report of Contact) which stated that a withdrawal of the appeal for entitlement to SMC based on aid and attendance was requested, as the Veteran no longer wanted to pursue that issue. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made in writing by the Veteran or his authorized representative. Id. Until the appeal is transferred to the Board, an appeal withdrawal is effective when received by the AOJ. 38 C.F.R. § 20.204(b)(3). Here, the Veteran’s written notification of his request to withdraw his appeal for entitlement to SMC Aid and Attendance benefits (consisting of a Report of Contact form prepared by his representative) was received by the AOJ, through his representative, on March 29, 2007, and therefore, under the law, such withdrawal became effective on that date. The Board notes that it was not necessary for the Board to dismiss this withdrawn appeal, as this appeal was withdrawn prior to transfer of the appeal to the Board. The Board thus finds that the statement by the Veteran’s representative indicating his intention to withdraw the appeal for entitlement to SMC based on the need for aid and attendance satisfies the requirements for the withdrawal of a substantive appeal. 38 C.F.R. § 20.204; see also DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.) The Board finds that the withdrawal of the appeal for entitlement to SMC was explicit and unambiguous. As an accredited representative with Texas Veterans Commission, the Veteran’s appointed representative was able to submit a withdrawal in writing under 38 C.F.R. § 20.204 as well as possessed the understanding of the consequences of such an action on the part of the Veteran. It was also specifically written by the representative in the statement that the Veteran no longer wanted to pursue that issue. Evidence of record further shows that the Veteran is a watchful and diligent claimant who at multiple points in time has withdrawn claims then contacted the AOJ to retract such withdrawals. For instance, in a March 2016 written statement, the Veteran informed the AOJ that he wanted to withdraw the current earlier effective date appeal. Within just a few days, he contacted the AOJ indicating that he wanted to continue this earlier effective date appeal. The Veteran did not take any such action to reinstate the SMC appeal withdrawn in March 2007 by his authorized representative. The Board also notes that a subsequent report of contact from the appellant’s representative dated December 5, 2007, stated a desire to withdraw all issues on appeal, noting that the Veteran was happy with his TDIU rating. Finally, the Board is cognizant that the Court identified a temporal abnormality in the March 2007 Report of Contact, as it references an award of entitlement to service connection for erectile dysfunction, a claim that was not granted until a few weeks later in an April 11, 2007 rating decision. The notice letter for that rating decision is dated April 23, 2007. However, the Board argues that the identified temporal abnormality is clearly encapsulated around and focused on an entirely different issue (the grant of service connection for erectile dysfunction) that is not the subject of this current appeal. The Board notes that they most likely explanation for why the March 29, 2007, Report of Contact references allowance of the ED claim that had not occurred as of March 29, 2007, is that the representative likely had been informed of the pending allowance of the erectile dysfunction claim on an informal basis by the adjudicators at the RO. Or, in the alternative, the representative could have erroneously dated the Report of Contact as having occurred March 29th, 2007, when it actually occurred April 29th, 2007 (after the April 11, 2007 allowance of ED and the April 23rd notice letter). Whether the withdrawal was made shortly before or shortly after the April 2007 rating decision is inconsequential. Either way it became effective during that 2007 time frame. The Board notes that a statement in support of claim dated in July 2007 from the Veteran references the prior withdrawal by the representative. Thus, the withdrawal clearly had occurred prior to that time. Although the Veteran stated in July 2007 that his representative did not have his permission to withdraw the claim for service connection for a cervical spine disorder, he made no such allegation with respect to the aid and attendance withdrawal. The Board acknowledges that the Veteran submitted a claim for increased compensation for depression in January 2009, and that the Board granted entitlement to SMC based on aid and attendance based in part on the Veteran’s service-connected depression. The Veteran then called VA on October 20, 2010 (per the Report of General Information) and reported that he was already receiving SMC, but that he would like to “file a claim for SMC pertaining to his diabetic condition.” However, the Board notes that entitlement to service connection for diabetes had previously been denied. A written statement received on January 12, 2011, detailed that the Veteran was claiming entitlement to benefits based on aid and attendance. The Veteran then submitted a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance), which was received by VA on February 11, 2011, in which a VA physician noted that the Veteran was unable to prepare his own meals due in part to his service-connected bilateral knee and foot disabilities. Then, later in February 2011, the Veteran submitted another VA Form 21-2680, in which a provider stated that he was not able to prepare his own meals and needed assistance in bathing and tending to other hygiene needs due in part to his service-connected bilateral knee disability. In the September 2015 rating decision, the AOJ construed the VA Form 21-2680 received on February 11, 2011, as a claim for SMC based on aid and attendance, and thus the AOJ found that the form showed an intent to seek such benefit. Considering the facts in this case in light of the above-noted legal criteria, the Board finds that the assignment of an effective date of January 12, 2011, but no earlier, is warranted for the award of SMC based on aid and attendance. The Board has determined that the written statement received on January 12, 2011, wherein the Veteran asserted that he was seeking benefits for aid and attendance, constitutes an informal claim for SMC. Further, the date on which the Veteran’s new claim for SMC based on aid and attendance was received, January 12, 2011, is later than the date on which entitlement to SMC based on the need for regular aid and attendance arose. See generally Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that it is the information in a medical opinion and not the date the medical opinion was provided that is relevant when assigning an effective date). Here, the VA Forms 21-2680 received in February 2011 detailed the various ways the Veteran’s service-connected disabilities left him in need of aid and attendance, such as inability to prepare meals, bathe, and tend to other hygiene needs. In addition, after March 29, 2007, when the Veteran, through his representative, withdrew the appeal for entitlement to SMC, the evidence shows that the earliest date on which a new claim for entitlement to SMC was received by VA was January 12, 2011. The Board finds no communications from the Veteran or his representative after March 29, 2007, and prior to January 12, 2011, that may be considered a formal or informal claim for entitlement to SMC based on aid and attendance. The Board is cognizant that VA is required to maximize benefits. 38 C.F.R. § 3.103(a); AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to SMC benefits does not require a separate claim when it can be inferred from an increased rating claim. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (stating that SMC “benefits are to be accorded when a veteran becomes eligible without need for a separate claim.”); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (holding that entitlement to SMC is to be inferred as part of an increased rating claim when applicable). However, based on the cumulative evidence of record, the Board finds that the January 2009 claim for increased compensation for depression does not show an intent to seek SMC based on aid and attendance. The ‘liberal reading’ requirement does not require the Board to conduct an exercise in prognostication, but only requires that the Board consider all issues reasonably raised by the record in the appeal. Myers v. Derwinski, 1 Vet. App. 127, 130 (1991). Given his prior withdrawn appeal for SMC in conjunction with a claim for increased compensation, the Veteran had actual notice of how SMC was a distinct benefit from the monthly compensation that he receives due to his evaluated service-connected disabilities. Further, though the Veteran submitted a claim for increased compensation for depression in January 2009, he then expressly claimed SMC due to other disabilities besides depression, such as diabetes as well as bilateral knee and foot disabilities. There was no indication in the January 2009 increased rating claim for depression that the Veteran desired to seek SMC based on the need for aid and attendance due to his depression at that time. Furthermore, there was no further lay or medical evidence that the Veteran was in need of the regular aid and attendance of another person at that time. For these reasons, the Board finds that the January 2009 statement did not demonstrate an intent to seek SMC based on aid and attendance, and therefore that communication was not considered a claim (inferred or otherwise) for SMC. In addition, the Board finds that the October 2010 phone call did not demonstrate an intent to seek VA compensation for any service-connected disability that served as the basis for the grant of entitlement to SMC based on aid and attendance (e.g., knee disability, spine disability, depression), and therefore the communication was not considered a claim for SMC. The Board also acknowledges the Veteran’s contention that an earlier effective date is warranted based on medical evidence dated prior to January 12, 2011, such as in September 2004, October 2004, or June 2005 medical statements from the Veteran’s private physicians. However, as discussed above, the Veteran, through his authorized representative, withdrew his prior claim on appeal for entitlement to SMC based on aid and attendance in March 2007. Based on the foregoing, the earliest effective date for the grant of SMC based on the need for regular aid and attendance is January 12, 2011, the date that the Veteran’s claim for such benefit was received after the Veteran withdrew his prior claim on appeal for SMC based on the need for aid and attendance. 38 C.F.R. § 3.400. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.