Citation Nr: 21010554 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-54 148 DATE: February 25, 2021 ORDER Effective August 17, 2016, and no earlier, special monthly compensation (SMC) based on aid and attendance is granted, subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. On August 17, 2016, the Veteran underwent coronary artery bypass surgery and a heart valve replacement for his service-connected heart disability. 2. Following this surgery, the Veteran was found to meet the criteria for VA home health aide (HHA) services. The criteria for HHA services are that “the Veteran would meet nursing home level of care without these non-institutional care services (homemaker/homehealth aide).” 3. On March 13, 2017, the Veteran submitted a claim for SMC based on the need for aid and attendance. In an April 2017 rating decision, the RO granted SMC, effective March 13, 2017, the date of the Veteran’s original claim. CONCLUSION OF LAW The criteria have been met for an effective date of August 17, 2016, and no earlier, for the grant of SMC. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1965 to February 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. In a November 2019 decision, the Board denied an effective date earlier than March 13, 2017 for SMC. Subsequently, the Veteran appealed the denial of the claim to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a September 2020 Order, the Court vacated the Board’s November 2019 decision, denying the claim for an earlier effective date for SMC, and remanded the matter to the Board for action consistent with the Joint Motion for Remand (JMR). The claim is now once again before the Board. Earlier Effective Date Effective August 17, 2016, and no earlier, SMC based on aid and attendance is granted. Legal Criteria Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. The effective date will 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. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a NOD is filed within one year of the notice of decision or unless new and material evidence was received within the appeal period. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In this case, the Veteran seeks an effective date earlier than March 13, 2017 for the grant of SMC based on aid and attendance. On March 13, 2017, the Veteran submitted a claim for SMC based on the need for aid and attendance. In an April 2017 rating decision, the RO granted SMC, effective March 13, 2017, the date of the Veteran’s original claim. However, prior to that, on August 17, 2016, the Veteran underwent coronary artery bypass surgery and a heart valve replacement for his service-connected heart disability. Following this surgery, the Veteran was found to meet the criteria for VA home health aide (HHA) services. The Board notes that the criteria for HHA services are that “the Veteran would meet nursing home level of care without these non-institutional care services (homemaker/homehealth aide).” Under 38 C.F.R. § 3.400(o)(2), when medical records indicate an increase in a disability, receipt of these medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established. 38 C.F.R. § 3.400(o)(2). The Veteran was already service connected for his heart disability, and because his August 17, 2016 surgery within one year of when he filed his claim for SMC in March 2017, under 38 C.F.R. § 3.400(o)(2), an effective date can be awarded prior to March 17 if it is factually ascertainable that the Veteran’s disabilities increased in severity so much that he is in need of regular aid and attendance in the one year prior to that date. See 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352. The fact that the Veteran required surgery for his service-connected heart disability, and that he met the criteria for VA HHA services is evidence that his disabilities increased in severity so much that he required aid and attendance. Because of this the Board finds that the correct effective date should be August 17, 2016 (the date of his coronary artery bypass surgery and heart valve replacement) and not March 13, 2017 (the date of his clam for SMC). Based on the above analysis, an effective date of August 17, 2016 (but no earlier) is granted for SMC based on aid and attendance. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.