Citation Nr: A21018458 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 210623-167861 DATE: November 18, 2021 ORDER Entitlement to an effective date of March 10, 2020, but no earlier, for entitlement to special monthly compensation (SMC) based on aid and attendance is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT Beginning March 10, 2020, it is factually ascertainable that the Veteran required regular need for aid and attendance. CONCLUSION OF LAW The criteria for an effective date of March 10, 2020, but no earlier, for the award of SMC based on aid and attendance are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the direct review docket. By selecting the direct review docket, the Board must base its decision on the evidence that was before the Agency of Original Jurisdiction (AOJ) at the time of the April 2021 decision. Effective date Generally, the effective date of a grant of service connection is based on either the date the original claim was received; the date the petition to reopen the claim was received after a final disallowance; or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran contends that he is entitled to an effective date prior to November 24, 2020 for entitlement to SMC based on aid and attendance. By way of background, the Veteran's initial claim for SMC was denied in an August 2019 rating decision as the evidence did not reflect the Veteran met the criteria for the rating. The Veteran did not initiate an appeal of this decision. In October 2019, the Veteran submitted a VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance form. In November 2019, the RO sent the Veteran and his representative a letter stating that if he would like to file a claim, he would need to file his request on the proper form. The letter provided instructions on what form to use and included directions on how to obtain a copy of the form from the internet. He was also informed that he could call VA for assistance. See 38 C.F.R § 3.155(a). The Board notes that the Veteran and his representative have not argued that the form submitted, VA 21-2680, was an "intent to file a claim" as described in VA regulations. Indeed, the examination was not "a saved electronic application" in the claims-submission tool, a "written intent on a prescribed intent to file form," or, "oral intent communicated to a designated VA personnel and recorded in writing." C.f. 38 C.F.R. § 3.155(b)(1)(i)-(iii) (defining the three methods to submit an "intent to file a claim."). In March 2020, the Veteran submitted an additional VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance form. Again, the RO sent the Veteran and his representative a letter stating that claims need to be filed on the proper form. The letter provided instructions on what form to use and included directions on how to obtain a copy of the required form from the internet. He was also informed that he could call VA for assistance. See 38 C.F.R § 3.155(a). The letter informed the Veteran that he could submit an intent to file a claim if he was not ready to submit a claim. In May 2020, the Veteran submitted a claim for increased rating of several service-connected disabilities and service connection for a heart condition. That claim was adjudicated in an August 2020 rating decision. The Board need not address whether a claim for aid and attendance could be inferred as a component of this May 2020 claim for reasons that will be made clear below. On September 24, 2020, the Veteran resubmitted some of the pages of the May 2020 claim with additional claims listed, to include entitlement to SMC based on aid and attendance. In November 2020, the Veteran and his representative were notified that the September claim form was missing a signature page and was therefore incomplete. The letter also informed the Veteran that if the RO received a completed claim application within a year of the incomplete filing, the claim would be considered filed as of the date of the incomplete application. See 38 C.F.R. § 3.155(c). Subsequently, in November 2020, the Veteran submitted a completed supplemental claim for entitlement to SMC based on aid and attendance. The RO granted the SMC claim and awarded a November 24, 2020 effective date representing the completed application for benefits. The decision did not mention the September 24, 2020 incomplete claim. The Board finds that the probative evidence supports an earlier effective date for the grant of service connection for SMC based on aid and attendance. The Veteran submitted an incomplete claim on September 24, 2020. Within a year of that claim, the Veteran submitted a complete claim form. Therefore, the date of the incomplete claim form will be considered the date of claim in this case. A claim for SMC is treated as an increased rating claim for the purpose of assignment of an effective date. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400. And an effective date for an increased rating claim may date back to 1 year before the date of the claim if it is factually "ascertainable that an increase in disability had occurred" within that time frame. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). This means that the Veteran is eligible for an effective date before September 24, 2020, if he experienced "an increase in disability" within the one-year grace period. SMC based on the need for aid and attendance is warranted if a Veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself/herself, or to keep himself/herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to their daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with their condition as a whole. 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. Id. On a March 10, 2020 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance form, the Veteran's physician reported the Veteran needed assistance with bathing and wound care. See March 2020, VA 21-2680. The Board is careful not to mechanically assign an effective date based on the date of examination, but it ascertains no earlier effective date. In this regard, October 2019 treatment records indicate that the Veteran was able to bathe, button clothing, attend to the wants of nature and feed himself without assistance. The March 2020 examination report is the earliest evidence of a worsening. Accordingly, the Board finds it factually ascertainable that the Veteran's SMC increased in disability on March 10, 2020, but no earlier. 38 C.F.R. § 3.401(a)(1). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.