Citation Nr: 21075366 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-65 985 DATE: December 20, 2021 ORDER An effective date of January 24, 2013, for the grant of special monthly compensation (SMC) based on the Veteran's need for regular aid and attendance is granted. FINDINGS OF FACT 1. VA received the Veteran's claim for SMC based on the need for regular aid and attendance on January 24, 2013. 2. Entitlement to SMC based on the need for regular aid and attendance was first denied in a January 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. 3. The Veteran and appellant continuously prosecuted the SMC claim since the original January 2014 benefits denial. 4. In an October 2016 rating decision, the RO granted SMC based on the Veteran's need for regular aid and attendance, and assigned an effective date of July 8, 2014. 5. The grant of SMC benefits was based upon a finding that the service-connected posttraumatic stress disorder (PTSD), which had been in effect since May 2010, resulted in the need for regular aid and attendance. 6. The Veteran's service-connected PTSD resulted in the need for regular aid and attendance since at least January 24, 2013, the date of receipt of claim for SMC benefits. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for an effective date of January 24, 2013 for the grant of SMC based on the Veteran's need for regular aid and attendance are met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.102, 3.156, 3.326(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1949 to November 1952. The Veteran died in October 2015. The appellant is the surviving spouse of the Veteran, who is substituted as the appellant for purposes of adjudicating the issue on appeal to completion. See 38 U.S.C. § 5121A (allowing for substitution in case of death of a claimant who dies on or after October 10, 2008). This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2016 RO rating decision, which granted entitlement to SMC based on the Veteran's need for regular aid and attendance, effective July 8, 2014. Per the rating decision, this was date on which the Agency of Original Jurisdiction (AOJ) found that the evidence of record first showed that the service-connected PTSD resulted in the need for regular aid and attendance. The appellant testified at a July 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. An appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). In A.B., the United States Court of Appeals for Veterans' Claims (Court) recognized that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service connected disability. Id. at 39. At the July 2021 virtual Board hearing, the appellant and representative indicated that the award of an earlier effective date of January 24, 2013 would satisfy the appeal as to an earlier effective date for the grant of SMC benefits. In the instant decision, the Board grants an earlier effective date of January 24, 2013 for SMC based on the Veteran's need for regular aid and attendance. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants an earlier effective date of January 24, 2013 for the grant of SMC based on the Veteran's need for regular aid and attendance, no further discussion of VA's duties to notify and assist is necessary. Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior rating decision will be reversed or amended. 38 C.F.R. § 3.105(a). At the July 2021 virtual Board hearing, the representative advanced that a CUE argument would have been warranted at the time of the January 2014 rating decision originally denying SMC. Even assuming that is correct, as the January 2014 rating decision did not become final, there is no need to subject the instant matter to the higher CUE evidentiary burden. Further, as the instant decision applies 38 C.F.R. § 3.400 and grants SMC based on the Veteran's need for regular aid and attendance from January 24, 2013, which, for the reasons discussed above, is a complete grant of benefits as to the issue on appeal, there is no need for the Board to consider an earlier effective date on an alternative basis, to include on the basis of CUE. Earlier Effective Date for SMC for Regular Aid and Attendance is Granted. An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The appellant seeks an effective date of January 24, 2013 for the grant of SMC based on the Veteran's need for regular aid and attendance. It is the appellant's contention that the effective date of the grant should be the date on which VA received the claim for SMC benefits. VA first received the Veteran's claim for SMC based on the need for regular aid an attendance on January 24, 2013. SMC based on the need for regular aid and attendance was first denied in a January 2014 RO rating decision. In an October 2017 statement of the case (SOC), the AOJ made a favorable finding that "the claim for special monthly compensation based on aid and attendance has been continuously prosecuted since January 24, 2013." Review of the record supports this favorable finding. During the course of this appeal, in an October 2016 rating decision, the RO granted SMC based on the Veteran's need for regular aid and attendance, and assigned an effective date of July 8, 2014. Per the rating decision, the grant of SMC benefits was based upon a finding that the service-connected PTSD, which had been in effect since May 2010, resulted in the need for regular aid and attendance. An effective date of July 8, 2014 was assigned because the AOJ found this to be the earliest date on which it was factually ascertainable that the Veteran's PTSD resulted in the need for regular aid and attendance. Along with the Veteran's January 2013 claim for SMC benefits, the Veteran submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, which was completed by a private physician. Per the SMC private examination report, the Veteran's need for aid and attendance was due, at least in part, to symptoms of dementia. In a subsequent June 2014 VA Form 21-2680, the same private physician clarified that the Veteran's service-connected PTSD was "intertwined with dementia." VA received yet another VA Form 21-2680 from a different private physician dated June 2015. At that time, the new private physician opined that the Veteran's service connected PTSD caused the diagnosed Alzheimer's disease/dementia. To summarize, the Veteran, during his life, and appellant have continuously prosecuted the SMC issue on appeal since the original date of claim on January 24, 2013. After death, the substituted appellant was eventually granted SMC benefits based upon the Veteran's prior need for regular aid and attendance due to service connected PTSD symptoms. The Veteran was in receipt of service connection for PTSD since May 2010. At the time of the original January 2013 SMC claim, the Veteran asserted that SMC was warranted due to dementia symptoms. Two private examiners in June 2014 and June 2015 opined that the Veteran's dementia symptoms were related to and/or intertwined with the service connected PTSD. Based upon the above, the evidence is at least in equipoise on the question of whether entitlement to SMC based on the need for regular aid and attendance first arose on January 24, 2013, the date of claim for SMC benefits. For these reasons, the Board will resolve reasonable doubt in favor of the appellant to find that an earlier effective date of January 24, 2013 is warranted for the grant of SMC based on the Veteran's need for regular aid and attendance. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For the above stated reasons, the Board finds that an earlier effective date of January 24, 2013 is warranted for the grant of SMC based on the Veteran's need for regular aid and attendance. As such, the earlier effective date issue is fully granted in this Board decision. Per the above, at the July 2021 virtual Board hearing, the appellant and representative indicated that the award of an effective date of January 24, 2013 would fully satisfy the appeal; thus, this is a full grant of the benefit sought on appeal as to the effective date of SMC. The Board finds the waiver of the remaining aspects of the appeal for an earlier effective date was knowing, intelligent, consistent with the evidence of record, and is the earliest effective date possible, as there is no basis in law for an effective date earlier than the date of Veteran's claim for aid and attendance, which was first submitted to VA on January 24, 2013. Because an earlier effective date of January 24, 2013 was granted for the award of SMC based on the Veteran's need for regular aid and attendance, the appellant has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed an earlier effective date. See 38 C.F.R. § 20.204 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of an effective date earlier than January 24, 2013 is rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.