Citation Nr: A21020213 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200629-94394 DATE: December 17, 2021 ORDER An effective date prior to April 10, 2018, for the award of special monthly compensation based on the need for regular aid and attendance (SMC) is denied. FINDING OF FACT Following the issuance of a final rating decision in July 2011, the Veteran did not file a formal or informal claim for an increased rating for a service-connected disability or SMC prior to the receipt of his claim for SMC on April 20, 2018, and, while entitlement to SMC was shown as of April 10, 2018, it was not otherwise factually ascertainable that his service-connected disabilities rendered him so helpless as to be in need of the regular aid and attendance of another person within the year prior to the receipt of his claim. CONCLUSIONS OF LAW 1. The July 2011 rating decision that continued the 100 percent rating assigned for bipolar I disorder with residuals of traumatic brain injury to include headache and blurred vision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2011). 2. The criteria for an effective date prior to April 10, 2018, for the award of SMC have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision issued in March 2020 by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act. In June 2020, the Veteran filed a timely Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested a hearing before a Veterans Law Judge, which was held before the undersigned in August 2021. A transcript of the hearing is associated with the record. Based on the Veteran's election, the Board may only consider the evidence of record at the time of the issuance of the rating decision on March 19, 2020, and any evidence submitted by the Veteran at the hearing or within 90 days thereafter. 38 C.F.R. § 20.302(a). Entitlement to an effective date prior to April 10, 2018, for the award of SMC. In a July 2019 rating decision, SMC was awarded as of April 10, 2018, the date an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) was completed, which was received on April 20, 2018, and accepted as the Veteran's informal claim for SMC. The Veteran's representative asserts that the proper effective date for the award of SMC is February 1, 2010, or June 3, 2010, the date the evidence demonstrated his need for the regular aid and attendance of another person based on his service-connected disability or disabilities, respectively. SMC is a special statutory award in addition to awards based on the schedular evaluations provided in VA's rating schedule and provides a higher rate of compensation for service-connected disabilities. Therefore, for the purpose of assigning an effective date, a claim for SMC is considered akin to a claim for an increased rating. In this regard, the law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The pertinent statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). Additionally, in Akles v. Derwinski, 1 Vet. App. 118, 121 (1991), the United States Court of Appeals for Veterans Claims held that VA is charged with considering a veteran's entitlement to the maximum benefit available, to include consideration of whether an increased rating claim encompasses a claim for SMC. Additionally, SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim. Bradley v. Peake, 22 Vet. App. 280 (2008). By way of background, an August 2010 rating decision awarded service connection for bipolar I disorder with an evaluation of 100 percent, effective February 1, 2010, and deferred the issue of service connection for residuals of a traumatic brain injury, to include headache and blurred vision. Thereafter, a rating decision issued in May 2011 granted service connection for radiculitis and peripheral neuropathy of the left and right lower extremities, each evaluated as 20 percent disabling as of June 3, 2010, and degenerative disc disease with spondylolisthesis, evaluated as 10 percent disabling as of June 3, 2010, and again deferred the issue of entitlement to compensation for residuals of a traumatic brain injury, to include headache and blurred vision. The Veteran did not file a timely disagreement with the May 2011 rating decision, no new and material evidence was received within one year of the issuance of the decision, and no new and relevant service department records have since been received. Thus, such rating decision is final. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2010). In a rating decision issued in July 2011, the AOJ continued the 100 percent rating for bipolar I disorder, now characterized to include residuals of traumatic brain injury to include headache and blurred vision. Again, the Veteran did not file a timely notice of disagreement with the July 2011 rating decision. Additionally, no new and material evidence was received within one year of the issuance of the decision, and no new, relevant service department records have since been received. Consequently, such rating decision is final. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2011). In this regard, the Board has considered the Veteran's representative argument that circumstances beyond the Veteran's control, i.e., his service-connected psychiatric disability, prevented him from filing a notice of disagreement with the aforementioned decisions. In Irwin v. Department of Veterans Affairs, 111 S.Ct. 453, 458 (1990), the Supreme Court held that equitable tolling may be applied to toll a statute of limitations "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." The Supreme Court held that there is a rebuttable presumption that all federal statutes of limitations contain an implied equitable tolling provision. Id. at 457. However, equitable tolling has been held to be inapplicable to issues involving effective dates under 38 U.S.C. § 5110. In Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1198 (2011), the Supreme Court affirmed that statutory jurisdictional requirements are not subject to equitable tolling exceptions created by courts. Rather, only claims processing rules without jurisdictional consequences are subject to equitable tolling. See Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) (holding that equitable tolling, which may be applied to a statute of limitations, does not apply to section 5110 as it does not contain a statute of limitations but merely prescribes when benefits may begin and provides for an earlier effective date under certain limited circumstances); Butler v. Shinseki, 603 F.3d 922 (Fed. Cir. 2010) (per curiam). In Barrett v. Principi, 363 F.3d 1316, 1321 (2004), the Federal Circuit expanded equitable tolling to apply not only where the claimant has been "induced or tricked by his adversary's misconduct" but also where his or her "failure to file was the direct result of a mental illness that rendered him or her incapable of 'rational thought or deliberate decision making'... or 'incapable of handling [his] own affairs or unable to function [in] society.'" As Barrett dealt with the statute of limitation for filing appeals to the Court under 38 U.S.C. § 7266, it did not reverse Andrews on the point that the effective date limitations prescribed by 38 U.S.C. § 5110 are not statutes of limitation. Therefore, as the effective date established for the Veteran's entitlement to SMC was based on 38 U.S.C. § 5110, his representative's equitable tolling argument must fail because he is asking the Board to "waive the express statutory requirements for an earlier effective date," which it cannot do. See Edwards v. Peake, 22 Vet. App. 29, 36-37 (2008), quoting Andrews, 351 F.3d at 1138. Thus, the doctrine of equitable tolling is not for application in this case. Nevertheless, even assuming equitable tolling was available to the Veteran, the Board finds that an earlier effective date would remain unwarranted. As noted above, to obtain the benefit of equitable tolling, a veteran must show that the failure to file was the direct result of a mental illness that rendered him incapable of "rational thought or deliberate decision making," or "incapable of handling [his] own affairs or unable to function [in] society." Barrett, 363 F.3d at 1321. In addition, the Federal Circuit held that equitable tolling applies when a claimant shows (1) an extraordinary circumstance; (2) that it caused an inability to file during the requested tolling period; and (3) diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). If shown, the "clock stops" and the requested period is not counted against the time-period for filing. Id. The Board finds that the record does not support the Veteran's representative's assertion that the Veteran's psychiatric symptoms during the relevant time period precluded him from completing tasks including filing a notice of disagreement as to any of the aforementioned decisions in a timely manner. Moreover, the record does not demonstrate that the Veteran's psychiatric disability rendered him incapable of "rational thought or deliberate decision making" or "incapable of handling his own affairs." In this regard, a review of the Veteran's filings from 2010 and 2011 reflect his ability to fully engage in the claims process as he advanced arguments on his own behalf, provided detailed descriptions of his disabilities and supporting evidence, and filed all necessary forms. Moreover, June 2010 VA examinations reflect that he was fully oriented to all spheres and, while he had a history of visual and auditory hallucinations, there was no evidence of a psychotic process or core at the present time and he was deemed competent. Additionally, contemporaneous VA treatment records reflect the Veteran was able to drive a car, walk for exercise, and perform his activities of daily living. Furthermore, in July 2015, January 2018, and February 2018, the Veteran sent well-articulated messages to the President of the United States, his United States Senator, and his United States Congressman, respectively, inquiring into any additional VA benefits to which he may be entitled. Accordingly, the Board finds that the evidence of record does not demonstrate that the Veteran's psychiatric disability prevented him from filing a timely notice of disagreement with the August 2010, May 2011, or July 2011 rating decisions. More importantly, the evidence of record does not demonstrate that the Veteran was incapable of "rational thought or deliberate decision making," or "incapable of handling [his] own affairs or unable to function [in] society." Thus, the aforementioned rating decisions are final. Following the issuance of the final July 2011 rating decision, the record does not show that the Veteran filed a formal or informal claim for an increased rating for a service-connected disability or SMC prior to April 20, 2018. In this regard, while the aforementioned communications to the Veteran's elected representatives were forwarded to VA, such cannot be construed as informal claims as a claim for benefits must be submitted on the application form prescribed by the Secretary as of March 24, 2015. 38 C.F.R. §§ 3.1 (p), 3.155, 3.160. Additionally, while entitlement to SMC was shown as of April 10, 2018, it was not otherwise factually ascertainable that his service-connected disabilities rendered him so helpless as to be in need of the regular aid and attendance of another person within the year prior to the receipt of his claim on April 20, 2018. See Harper, supra. In this regard, his representative argued, and the Veteran testified, at the August 2021 Board hearing that he has required the assistance of his spouse on a regular basis due to his service-connected disabilities since at least 2010. This does not demonstrate that the Veteran's service-connected disabilities increased in severity during the year prior to receipt of his April 2018 claim so as to warrant an earlier effective date for SMC. Moreover, while the Veteran's representative argued that there is a pending unadjudicated claim for SMC prior to April 20, 2018, such is not shown by the evidence of record. Specifically, as noted previously, the final August 2010, May 2011, and July 2011 rating decisions adjudicated all matters applicable to the Veteran's pending increased rating claims and, to the extent that such did not award SMC as an ancillary benefit, such claim was implicitly denied, and no formal or informal claim for SMC was received after the issuance of the July 2011 rating decision and prior to April 20, 2018. Consequently, such argument is without merit. Finally, the Veteran's representative argued that there was clear and mistakable error (CUE) in the August 2010, May 2011, and July 2011 rating decisions to the extent that such did not award SMC in connection with assigning initial and increased ratings for the Veteran's service-connected disabilities. As such claims have not been adjudicated by the AOJ, the Board does not have jurisdiction over them. Thus, the Veteran's representative is advised to file such claims at the AOJ. Consequently, for the foregoing reasons, the Board finds that an effective date prior to April 10, 2018, for SMC is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As the preponderance of the evidence is against such claim, there is no doubt to be resolved and the Veteran's appeal must be denied. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.