Citation Nr: 21067604 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-20 686 DATE: November 4, 2021 ORDER Entitlement to an effective date prior to September 17, 2013 for the grant of entitlement to special monthly pension based on the need for aid and attendance is denied. FINDINGS OF FACT 1. The earliest evidence in the record indicating an intent to apply for special monthly pension based on the need for aid and attendance was received on January 3, 2007. 2. The preponderance of the evidence is against a showing that the Veteran met the criteria for an award of special monthly pension based on the need for aid and attendance prior to September 17, 2013. CONCLUSION OF LAW The criteria for assignment of an effective date prior to September 17, 2013, for the award of special monthly pension based on the need for aid and attendance have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.352, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a VA Regional Office (RO). The Board denied the Veteran's claim for an earlier effective date in June 2019. The Veteran appealed the denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 decision, the Court vacated the Board's June 2019 decision, granted the parties' April 2020 Joint Motion for Remand (JMR), and remanded the matter to the Board for action consistent with the ruling. In a September 2020 decision, the Board denied the Veteran's claim again. The Veteran again appealed the denial of his claim. In a July 2021 decision, the Court vacated the Board's September 2020 decision, granted the parties' July 2021 JMR, and remanded the matter to the Board for action consistent with the ruling. 1. Entitlement to an effective date prior to September 17, 2013 for the grant of entitlement to special monthly pension based on the need for aid and attendance In the July 2021 JMR, the parties agreed that in finding the September 2013 VA examination was the first evidence that the Veteran required aid and attendance "in an ongoing, regular capacity," the Board erred by applying the incorrect standard under 38 C.F.R. § 3.352(a) for establishing the need for aid and attendance. "It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need." 38 C.F.R. § 3.352(a). Specifically, they found that the Board erred to the extent that it required the Veteran to constantly need regular aid and attendance, which the regulation explicitly establishes is not required for entitlement to special monthly pension. 38 C.F.R. § 3.352(a); Allday v. Brown, 7 Vet. App. 517, 527 (1995). Accordingly, the Board will readjudicate the issue. The effective date of an award based on an original claim for pension benefits generally shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(1). A specific claim in the form prescribed by the Secretary 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). The term "claim" or "application" means 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). VA's governing laws and regulations direct that special monthly pension at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C. §§ 1502(b), 1521; 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, a veteran must (1) be 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; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(c). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). In the case at hand, the Veteran was granted special monthly pension in a November 2013 rating decision, based on the need for aid and attendance. The RO assigned an effective date of September 17, 2013, the date of the VA examination the RO deemed had demonstrated the Veteran meeting the criteria for entitlement to SMP. He contends that the award should go back further than September 2013. His claim was received on January 3, 2007. In the report of the Veteran's February 2007 VA examination, the examiner noted that the Veteran could walk unaided, though he needed periodic rest in bed. The Veteran could feed himself, did not need assistance with bathing or other hygienic needs, he was not confined to bed, could sit up on his own, was not blind, could travel and leave home without assistance, and did not require nursing home care. The Veteran submitted a statement by a VA physician in February 2007. The physician stated that the Veteran had chronic low back pain, which was exacerbated by prolonged standing or sitting, and that the Veteran would benefit from an elevator pass and sitting duties. He also stated that the Veteran might need occasional bed rest to relieve his low back pain when he experienced a flare-up. The physician did not state that the Veteran needed assistance performing his daily activities or that the Veteran was housebound During his August 2011 Board hearing, the Veteran testified that he had lower back pain, sleep apnea, foot problems, COPD, and bad knees. He expressed that he was "getting to the point" where he needed others to help him with daily activities. He had difficulty walking, preparing food, and showering. He testified that he experienced flare-ups 2 to 3 times per week and that there were times where he was bedridden, could not get up, and could barely walk. A subsequent December 2011 VA treatment record reflects the Veteran reporting that he was able to be independent 2 to 3 days per week, with the assistance of a cane. 3 to 4 days a week, his lower back pain and tingling in his legs would force him to stay in bed. A June 2012 VA treatment record reflects the Veteran lived alone in an apartment, occasionally worked helping a friend with non-physically strenuous work, tried to get out of the home daily, and he generally walked about one block while walking. The Veteran was also interested in finding out if he was eligible for home care services. VA treatment records indicate the Veteran first began applying for assistance in cleaning his apartment in September 2013. Notably, in the report of the Veteran's September 17, 2013 VA aid and attendance or housebound examination, the examiner stated that the Veteran was on multiple pain medications that could cause inability to care for oneself and could cause issues with physical balance. In testimony before the Board in October 2018, the Veteran claimed that he had been using a cane since 2007, experienced difficulty standing or walking for prolonged periods of time, and used a CPAP machine from 2007 to 2013. He also stated that from approximately 2009, he needed assistance with many of his daily tasks as he experienced increased difficulty performing them. He testified that he had been homeless in 2007, so he was not preparing his own food and clothes. He experienced bowel and urination issues from 2008 to 2009 and acquired a single-resident occupancy (SRO) apartment in 2009. At that time, he testified that he required help with most activities. However, he testified that he prepared his own medications. Although the Veteran asserts that he required aid and attendance as early as January 2007, his February 2007 VA examination found that he did not meet the criteria for aid and attendance, and the Board finds this evidence highly probative as the examination was conducted by a physician. The Board has thus focused on the evidence dated between the February 2007 VA examination and the September 2013 VA examination. There is no evidence that the Veteran was blind or nearly blind. Similarly, there is no evidence that the Veteran was a patient in a nursing home because of mental or physical incapacity. This leaves a factual need for aid and attendance as the remaining route for proving need for aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. §§ 3.351(c). VA has already conceded that the Veteran proved a need for regular aid and attendance from September 17, 2013 onward. Consequently, the primary point of contention is when the evidence demonstrates that the Veteran's need for aid and attendance became "regular." As an adjective, "regular" has a dictionary definition of "recurring, attending, or functioning at fixed, uniform, or normal intervals[.]" Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/regular (last visited November 4, 2021). Another dictionary offers the following definition, "happening or doing something often[.]" Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/regular (last visited November 4, 2021). Accordingly, the Board has provided full consideration to the Veteran's lay contentions. During the August 2011 Board hearing, the Veteran testified that he was sometimes unable to act independently due to his knees and back and that he was "getting to the point" where he required ongoing assistance. Significant limitations are suggested by his December 2011 VA treatment record. However, the June 2012 VA treatment record reflects the Veteran being able to leave his home and walk independently most days. By the time of the September 2013 VA examination, the Veteran was on multiple pain medications that could cause inability to care for oneself and could cause issues with physical balance. Overall, the Board is unable to find that the limitations during this time period equate to a factual need for aid and attendance, given the extent of his activity during this time. The first evidence of record that reflects the Veteran requiring aid and attendance in a regular capacity is the September 17, 2013 VA examination. While there is earlier evidence of the Veteran experiencing periods in which he required assistance or could not leave his bed due to back pain, the Board finds that the evidence suggests these periods were more sporadic and did not represent a regular occurrence. The Board places special attention on the December 2011 VA treatment record in which the Veteran stated that he could not leave his bed 3 to 4 days out of the week. This level of disability is not reflected in the evidence of record again until the 2013 VA examination, and it is not consistent with his June 2012 VA treatment records. The Board does not dispute that the Veteran experienced significant medical and personal problems for the period from 2007 to 2013. However, it does not find that there is sufficient evidence that the Veteran's periods of more severe symptoms resulted in a need for regular aid and attendance prior to September 2013. Accordingly, the Board finds the current September 2013 date to be the most appropriate effective date for the grant of the Veteran's claim for SMP. As such, the claim for an effective date prior to September 17, 2013, special monthly pension based on the need for aid and attendance is denied. See 38 C.F.R. § 3.400. As the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, Associate 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.