Citation Nr: A23028131
Decision Date: 10/11/23	Archive Date: 10/11/23

DOCKET NO. 230911-377123
DATE: October 11, 2023

ORDER

Entitlement to an effective date of August 21, 2019, but no earlier, for the grant of entitlement to special monthly compensation (SMC) based on aid and attendance status is granted.

FINDING OF FACT

The Veteran's claim for SMC based on the need for regular aid and attendance is part of his appeal that resulted in a grant of an earlier effective date of August 21, 2019 for service connection of diabetic peripheral neuropathy of the bilateral upper extremities; from that date forward, he has been shown to be in need of regular aid and attendance by reason of this service-connected disease or injury.

CONCLUSION OF LAW

The criteria for entitlement to an effective date of August 21, 2019, but no earlier, for the grant of entitlement to special monthly compensation (SMC) based on aid and attendance status have been met. 38 U.S.C. §§ 1114(l), 5110; 38 C.F.R. §§ 3.350(b), 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active military service from December 1966 to July 1969.

In January 2023, the Board, in pertinent part, granted entitlement to SMC based on the need for aid and attendance.

A January 2023 rating decision implemented the Board's decision and assigned an effective date of October 21, 2019 for SMC based on aid and attendance. Thus, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. 

In February 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the January 2023 rating decision. In March 2023, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior January 2023 decision. 

In the September 2023 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2023 rating decision on appeal. 38?C.F.R. § 20.301.

Entitlement to an effective date of August 21, 2019, but no earlier, for the grant of entitlement to special monthly compensation (SMC) based on aid and attendance status

The Veteran contends that he is entitled to an effective date earlier than October 21, 2019 for his award of SMC based on his need for aid and attendance. Specifically, he contends that his need of aid and attendance is based upon his limitations of his service-connected upper extremity disabilities. 

Here, the Veteran originally sought entitlement to an effective date earlier than October 21, 2019 for service connection for diabetic peripheral neuropathy of the bilateral lower extremities. A February 2022 rating decision granted entitlement to an earlier effective date of August 21, 2019 because the records showed that he was first treated for the condition on August 21, 2019 and had submitted an intent to file a claim within a year of that date.

Generally, the effective date of an award based on a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, an effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1) and (2). 

According to Harper v. Brown, 10 Vet. App. 125, 126 (1997), three possible effective dates may be assigned depending on the facts of the particular case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (i.e., the date the increase is factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or, (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)).

The Veteran asserts that his service-connected peripheral neuropathy of the bilateral upper extremities causes deficits which necessitate the regular need for aid and attendance of another. As SMC is part and parcel of increased rating claims, the issue of when the claim was raised may be due, in part, to the appeals and procedural histories of these claims. Akles v. Derwinski, 1 Vet. App. 118 (1991) (noting that the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim").

SMC at the aid and attendance rate is payable when a Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or 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). A number of factors are to be accorded consideration in determining the need for regular aid and attendance, including: inability of a claimant to dress or undress himself, or to keep himself 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; inability to feed himself 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 him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350(b), 3.352(a).

As noted above, SMC based on aid and attendance was granted by the Board in January 2023. A January 2023 rating decision implemented the Board's decision and assigned an effective date of October 21, 2019 because that was the date VA received an intent to file a claim. The March 2023 HLR rating decision denied entitlement to an earlier effective date and explained that October 21, 2019 was the date service connection for bilateral peripheral neuropathy of the lower extremities became effective, and the award of SMC based on aid and attendance was attributable solely to the Veteran's service-connected disabilities of the lower extremities. 

However, in the January 2023 decision, the Board found that the Veteran was entitled to SMC based on aid and attendance based upon limitations caused by his service-connected peripheral neuropathy of the bilateral upper extremities as well. The Board discussed a July 2020 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) completed by Dr. S.M that focused primarily on the Veteran's upper extremities. The Board found that the evidence shows:

... [T]he Veteran has difficulty feeding himself and he cannot prepare his own meals due to loss of dexterity and weakness. Moreover, he cannot independently shave and requires assistance with bathing. Additionally, the evidence shows that he receives assistance with his activities of daily living, such as obtaining rides and assisting with getting out of the tub.

The Board went on to state that:

... [T]he evidence does not show that the Veteran would otherwise not be in need of aid and attendance but for his service-connected bilateral lower extremity diabetic peripheral neuropathy disability, as he is already in receipt of special monthly compensation based on loss of use of both feet. Here, the evidence demonstrates that this is the case, and thus the benefit sought on appeal is granted.

Reiterating that the law mandates resolving all reasonable doubt in favor of the Veteran, the Board finds that as the award of SMC was based primarily on his service-connected peripheral neuropathy of the bilateral upper extremities, which were assigned an effective date of August 21, 2019. These disabilities require care or assistance on a regular basis from the hazards or dangers of the daily environment. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. Therefore, the Veteran is entitled to SMC benefits based upon the need of regular aid and attendance as of August 21, 2019. 

 

 

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Miller, 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.