Citation Nr: 21074232 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 20-18 904 DATE: December 14, 2021 ORDER An effective date before December 22, 2015, for the award of special monthly compensation (SMC) at the "L" rate based the need for regular aid and attendance is denied. FINDING OF FACT Before December 22, 2015, the weight of the evidence is against a finding that the Veteran had an anatomical loss or loss of use of both feet, an anatomical loss or loss of use one hand and one foot, nor was the Veteran so helpless as to need the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for an effective date before December 22, 2015, for the award of SMC at the "L" rate based on the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.400, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to August 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appealed this decision to the Board, which, in an August 2017 decision, granted the Veteran's claim for SMC at the "L" rate based on the need for regular aid and attendance. The Board's decision informed the Veteran of his appellate rights, including the 120-day time limit from the date of the decision to file: 1) a Notice of Appeal with the United States Court of Appeals for Veterans Claims (Court), or; 2) a Motion for Reconsideration with the Board, or; 3) a Motion to Vacate with the Board. A September 2018 rating decision of the AOJ implemented the Board's August 2017 decision, granting SMC at the "L" rate based on the need for regular aid and attendance with an effective date of December 22, 2015. A clarification of the issue currently before the Board is warranted. In April 2019, the Veteran filed a notice of disagreement (NOD) as to the AOJ's September 2018 rating decision, arguing that he was entitled both to an earlier effective date for the award of SMC and to a greater rate of SMC based on the need for regular aid and attendance at a higher level of care. See 38 U.S.C. § 1114(p), (r)(1), (r)(2). The Veteran's April 2019 communication additionally included a Motion for Reconsideration of the Board's August 2017 decision, alleging clear and unmistakable error (CUE) in the Board's failure to grant SMC at the greater "P" or "R" rates. In March 2020, the AOJ issued a statement of the case (SOC) addressing only the issue of an earlier effective date for the award of SMC. In April 2020, the AOJ informed the Veteran that it had not accepted his April 2019 communication as a valid NOD as to its September 2018 rating decision implementing the Board's grant of SMC at the "L" rate. The AOJ reiterated the appellate rights that had been provided to the Veteran with the Board's August 2017 decision, and it noted that it did not have the authority to address the Veteran's disagreement with a decision of the Board. In June 2020, the Board, finding no CUE in its August 2017 decision, denied the Veteran's April 2019 Motion for Reconsideration. The Veteran did not file a Notice of Appeal with the Court addressing either the Board's August 2017 or April 2019 decisions, and the Board's decisions became final. See 38 C.F.R. § 20.1100. Given this procedural history, the Board lacks jurisdiction to address the issue of entitlement to a greater rate of SMC because its April 2017 decision granting SMC based on the need for regular aid and attendance is final. With that said, the Board has retained jurisdiction over the downstream issue of entitlement to an earlier effective date for the award of SMC. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In January 2017, the Veteran participated in a hearing before a Veterans Law Judge (VLJ) other than the undersigned that addressed the issue of entitlement to an SMC. The issue currently on appealan earlier effective date for the award of SMCis downstream and distinct from the issue of entitlement to an SMC. As a result, the VLJ who held the January 2017 hearing need not render a decision addressing the issue of the proper effective date for the award of SMC. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (1997) (ratings and effective dates are downstream issues, which must be separately appealed); 38 C.F.R. § 20.707. Earlier Effective Date for the Award of SMC The Veteran is in receipt of SMC based on the need for regular aid and attendance effective December 22, 2015, as the result of the following service-connected disabilities: residuals of a TIA (rated based on psychiatric symptoms), diabetes with erectile dysfunction, diabetic peripheral neuropathy of the upper extremities, diabetic sciatic neuropathy of the lower extremities, and diabetic femoral neuropathy of the lower extremities. The Veteran has argued, for example in April 2019, that the effective date for the award of SMC should be August 2011. For the purpose of establishing the appropriate effective date for a grant of SMC, VA treats a claim for SMC as part and parcel of a claim for an increased rating. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); 38 C.F.R. § 3.155(d)(2). The effective date for an award of SMC is the earliest date when it was factually ascertainable that an increase in disability occurred, if a claim is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Otherwise, the effective date for the award of SMC is the later of the date of receipt of the claim or the date entitlement arose. Id.; see also Hazan v. Gober, 10 Vet. App. 511 (1997). The date of the Veteran's claim for SMC is not in dispute. The Veteran filed a claim for service connection for diabetes in August 2011. A June 2012 rating decision, in pertinent part, granted service connection for diabetes with erectile dysfunction with an initial 20 percent rating, peripheral neuropathy of the upper extremities with initial 20 percent ratings, and peripheral neuropathy of the lower extremities with initial 20 percent ratings. In July 2012, the Veteran not only expressed disagreement with these initial ratings but also explicitly sought SMC based on the need for regular aid and attendance. As part and parcel of the claim for increased initial ratings, the Veteran's claim for an SMC arose with his August 2011 claim for service connection. Having established August 2011 as the date of claim, the Board must next determine when it was factually ascertainable that the Veteran's entitlement to SMC arose. SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships beyond those contemplated by VA's schedule for rating disabilities. See generally 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of the Veteran's service-connected disabilities. In this case, the Veteran is in receipt of SMC at the "L" rate, which is payable as the result of service-connected disability when, in pertinent part, a veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; or is so helpless as to need the regular aid and attendance of another person. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The term "loss of use" contemplates "balance and propulsion" equivalent to that provided by a prosthetic device. In other words, a "loss of use" of the feet does not require a finding that the veteran has no remaining effective functioning of the feet, but instead that the veteran has been deprived of the use of the lower extremities to such a degree that locomotion was precluded. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). VA considers a number of factors when determining whether a veteran requires the regular aid and attendance of another person. See 38 C.F.R. §§ 3.351, 3.352(a); 38 U.S.C. § 1114(l). These factors include the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances; inability to feed himself through loss of coordination of the upper extremities; inability to attend to the wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis, to protect the claimant from hazards or dangers incident to his daily environment. Id. While an award of SMC does not require all of the above disabling conditions, at least one of the enumerated factors must be present. See Turco v. Brown, 9 Vet. App. 222 (1996). The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a). Turning to the facts in this case, following his August 2011 claim, the Veteran underwent a VA examination in March 2012, at which time he stated that the pain and tingling associated with his peripheral neuropathy hindered his ability to engaged in prolonged standing, walk even short distances, or rise from a seated to a standing position without assistance. The Veteran stated that he had experienced a progressively worsening loss of position sense and balance, and he indicated that he fell frequently. Muscle strength and reflex examinations of the upper and lower extremities were normal. The Veteran showed decreased sensitivity to light touch of the ankles, feet, and toes; sensory examination of the shoulders, forearms, hands, fingers, knees, and thighs was normal. Position sense of the upper and lower extremities was normal. The examiner observed that the Veteran's complaints of imbalance nearly constantly affected his ability to ambulate, and he required the use of a cane. With that said, the examiner additionally noted that the Veteran could walk without the assistance of another person, and he retained the ability to walk greater than one half mile, but he lacked the ability to walk more than a mile. The examiner found that the Veteran could travel beyond his current domicile, that he had an unrestricted ability to leave the home, and, in fact, that he had travelled to the examination alone. The examiner noted that the Veteran's symptoms of neuropathy resulted in "some difficulties" in his ability to feed himself, dress and undress himself, bathe himself, and groom himself. With that said, the examiner noted elsewhere in the examination that the Veteran was unable to bathe himself. The Veteran's toileting ability was normal. In July 2012, the Veteran stated that he drove periodically but experienced difficulty using the accelerator and brake pedals. In August 2012, the Veteran indicated that his symptoms of neuropathy "made ambulating long distances increasingly difficult". In a September 2012 kinesiology consultation assessing the Veteran's need for a motorized scooter, a clinician noted that the Veteran's primary caregiver was his spouse. The Veteran was able to drive, and he could be left alone during the day and night. The Veteran was independent in his abilities to feed, bathe, dress, and toilet himself. The Veteran was ambulatory with the use of a cane for mobility. While the Veteran could walk for 250 feet with a cane, he did so with weakness and showed moderate deficits in his static and dynamic balance. With that said, the clinician noted that the Veteran retained the functional abilities to ambulate both in the household (less than 100 feet) and in the community (greater than 100 feet). In November 2012, the Veteran walked with an independent gait using a cane; while the Veteran experienced numbness in his legs, he denied experiencing any falls. In January 2013, a clinician noted that the Veteran did not require assistance transferring from a supine, sitting, or long-sitting position. The Veteran could independently transfer himself with a standing pivot with the use of a device. In an April 2013 examination addressing the Veteran's peripheral neuropathy, an examiner noted that the Veteran's neuropathy resulted in mild paresthesias and dysesthesias, moderate numbness, and moderate intermittent pain of the lower extremities. The Veteran had mild paresthesias and dysesthesias of the upper extremities. The examiner noted that the Veteran additionally experienced poor grip strength and balance. The Veteran had normal muscle strength of the upper and lower extremities. The Veteran showed hypoactive reflexes of the ankles, but otherwise normal reflexes. The Veteran showed decreased sensitivity to light touch of the hands, fingers, lower legs, ankles, feet, and toes; sensory examination of the shoulders, forearms, thighs, and knees was normal. The Veteran walked with an antalgic gait. The examiner concluded that the Veteran's neuropathy of the upper extremities resulted in mild incomplete paralysis of the radial, median, and ulnar nerves. The Veteran's neuropathy of the lower extremities resulted in mild incomplete paralysis of the sciatic and external popliteal nerves. The Veteran regularly used a cane and walker for ambulation, and he occasionally used a motorized scooter for locomotion outside the home. The Veteran's disabilities did not result in diminished functioning of the extremities such that amputation with a prosthesis would equally serve the Veteran. In an April 2013 examination addressing the Veteran's need for aid and attendance, an examiner noted that the Veteran was able to travel beyond his current domicile. The Veteran used a cane and walker to ambulate in his house and a motorized scooter outside of his house. The Veteran could walk without the assistance of another person only within the house, and imbalance nearly constantly affected the Veteran's ability to ambulate. The Veteran reported that he could not drive, and he could leave the house only when driven by his wife. The Veteran had a lack of coordination in his lower extremities. The Veteran's weight-bearing was abnormal, with the Veteran ambulating with a cane and an antalgic gait. Propulsion was also abnormal, with the examiner noting that the Veteran was "slow to start". The function of the Veteran's upper extremities was normal. The Veteran could perform all self-care skills, with the examiner noting that the Veteran could undress himself for the examination and lift himself onto the examination table with his cane. The examiner found the Veteran to be independent with his activities of daily living, but also stated that the Veteran would need assistance with some such activities. In February 2015 and April 2015, the Veteran indicated that he could not drive as a result of his symptoms of neuropathy. The Veteran had not, however, experienced any increased difficulty with walking or other movement. The Veteran participated in a hearing before the AOJ in August 2015, at which time the Veteran indicated that his neuropathy caused him problems with self-care. The Veteran indicated that he experienced pain and weakness in his lower extremities. The Veteran stated that his neuropathy of the upper extremities resulted in symptoms of numbness, and poor grip strength. The Veteran could dress himself with difficulty. The Veteran did not cook for himself, and he could not wash his clothes. The Veteran experienced difficulty in maintaining hygiene after toileting. The Veteran's spouse regularly assisted him, for example, with bathing and getting in and out of the bathtub. The Veteran experienced a loss of sensation in his hands and feet such that he did not drive any longer. The Veteran underwent a VA examination on December 22, 2015, at which time an examiner noted that the Veteran's neuropathy resulted in severe constant pain, intermittent pain, paresthesias, dysesthesias, and numbness of the lower extremities. The Veteran had moderate constant pain, intermittent pain, paresthesias, dysesthesias, and numbness of the upper extremities. The examiner noted that the Veteran additionally experienced weakness and instability. Muscle strength testing of the lower extremities showed visible muscle movement but no joint movement for knee extension and knee flexion, and no movement against gravity for ankle plantar flexion and dorsiflexion. Muscle strength testing of the upper extremities showed visible muscle movement but no joint movement for grip and pinch, no movement against gravity for elbow flexion and extension, and no movement against resistance for wrist flexion and extension. No muscle atrophy was noted. All of the Veteran's reflexes were decreased. The Veteran showed normal sensation of the knees and thighs but otherwise had decreased sensitivity to light touch. The examiner concluded that the Veteran's neuropathy of the upper extremities resulted in moderate incomplete paralysis of the radial, median, and ulnar nerves. The Veteran's neuropathy of the lower extremities resulted in moderate incomplete paralysis of the sciatic and femoral nerves. In August 2017, the Board, noting, in pertinent part, the Veteran's 2015 testimony before the AOJ and the December 2015 examination report, granted SMC based on the Veteran's need for regular aid and attendance. In September 2018, the AOJ awarded SMC based on the Veteran's need for regular aid and attendance effective as of the date of the December 22, 2015, examination. Turning to an analysis of this evidence, the Board finds that it was not factually ascertainable that the Veteran met the criteria for an award of SMC at the "L" rate at any time before December 22, 2015. Before December 22, 2015, it was not factually ascertainable that the Veteran had suffered an anatomical loss or loss of use of both feet, or of one hand and one foot. Te Board acknowledges that the Veteran indeed experienced symptoms, including numbness, tingling, impaired balance, and decreased sensitivity to touch that impaired the functioning of his hands and feet before December 22, 2015. For example, the March 2012 examiner noted that the Veteran experienced some difficulties in his abilities to feed, dress, and groom himself; the March 2012 examiner indicated both that the Veteran could bathe himself with difficulty and that he required assistance bathing. In April 2015, the Veteran indicated that he could not engage in activities such as washing his clothes or driving. While it is not in dispute that the Veteran's symptoms before December 22, 2015, affecting his hands and feet resulted in functional impairments, the Veteran's functioning was not impaired to such an extent that it approximated the loss of use of both feet, or of one hand and one foot. For example, in March 2012, the Veteran's muscle strength and reflexes were normal, and his sensation was minimally impaired. In April 2013, an examiner found that the Veteran's symptoms of neuropathy resulted in only mild incomplete paralysis of the affected nerves. Additionally, as is discussed in greater detail below, the Veteran retained significant functional abilities before December 22, 2015, which is additionally inconsistent with a finding that the Veteran's symptoms approximated the loss of use of both feet or of one hand and one foot. Consistent with this finding, in April 2013, an examiner found that the Veteran's disabilities did not result in diminished functioning of the extremities such that amputation with a prosthesis would equally serve the Veteran. The Board thus finds that the weight of the evidence is against a finding that the Veteran experienced an anatomical loss or loss of use of both feet or one hand and one foot at any time before December 22, 2015, and an earlier effective date for the award of SMC is unavailable on this basis. Before December 22, 2015, it was not factually ascertainable that the Veteran was so helpless as to need the regular aid and attendance of another person. With that said, the Board acknowledges that before this time, the Veteran indeed experienced symptoms, including numbness, tingling, impaired balance, and decreased sensitivity, that impaired his ability to engage in self-care. For example, the March 2012 examiner noted that the Veteran experienced some difficulties in his abilities to feed, dress, and groom himself; the March 2012 examiner indicated both that the Veteran could bathe himself with difficulty and that he required assistance bathing. In April 2015, the Veteran indicated that he could not engage in activities such as washing his clothes or driving. In September 2015, an examiner indicated both that the Veteran needed assistance with some activities of daily living and that he was independent in his activities of daily living. The presence of these factors is consistent with a finding that the Veteran indeed experienced functional limitations as the result of his service-connected disabilities. With that said, the Board finds that the weight of the evidence is against a finding that such limitations rendered the Veteran so helpless as to need the regular aid and attendance of another person before December 22, 2015. In this regard, despite the limitations discussed above, the Veteran retained the ability to walk more than a half mile with a cane (March 2012), travel beyond his current domicile alone (March 2012), drive (September 2012), independently feed, bathe, dress, and toilet himself (September 2012), be left alone during the day or night (September 2012), transfer independently (January 2013), operate a motorized scooter (April 2013), perform all self-care skills (April 2013), dress himself (August 2015), and feed himself (August 2015). The Veteran's abilities to engage in such activities does not support a finding that the Veteran was so helpless as to require the regular aid and attendance of another person at any time before December 22, 2015. Upon a review of the totality of the evidence, the Board finds that it was not factually ascertainable at any time before December 22, 2015, that the Veteran experienced an anatomical loss or loss of use of both feet or of one hand and one foot, nor was the Veteran so helpless as to need the regular aid and attendance of another person. The appropriate effective date for the award of SMC at the "L" rate is the later of August 2011, which is the Veteran's date of claim, and December 22, 2015, which is the date when entitlement to SMC arose. An effective date before December 22, 2015, for the award of SMC is unavailable, and the Veteran's claim is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.