Citation Nr: 25002008 Decision Date: 02/11/25 Archive Date: 02/11/25 DOCKET NO. 20-07 662 DATE: February 11, 2025 ORDER Entitlement to an effective date prior to September 12, 2018, for special monthly compensation (SMC) for aid and attendance, housebound status, is denied. FINDING OF FACT 1. The Veteran's claim for SMC based on the need for aid and attendance was received by VA on October 25, 2018. 2. A January 2019 rating decision granted SMC based on the need for aid and attendance effective September 12, 2018, the date that his provider completed the Examination for Housebound Status or Permanent Need for Regular Aid and Attendance form. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than September 12, 2018, for the grant of SMC based on the need for aid and attendance have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1976 to July 1977 and from April 1979 to April 1982. The Veteran's claim for an effective date prior to September 12, 2018, was denied in a September 2023 Board of Veterans' Appeals (Board) decision. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In July 2024, the Court granted a Joint Motion for Partial Remand (JMR). In the JMR, the parties agreed that the Board's September 2023 decision was inadequate because it failed to set forth an adequate statement of reasons and bases, to include specifically addressing a December 2018 statement from the Veteran's spouse outlining the Veteran's limitations due to his service-connected posttraumatic stress disorder (PTSD). This case originates from an October 2018 claim for aid and attendance benefits. A January 2019 rating decision granted SMC aid and attendance benefits with an effective date of September 12, 2018, the date the Veteran's doctor completed the VA Form 21-2680, which was submitted with the claim. Effective date prior to September 12, 2018, for SMC Aid and Attendance Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). This statutory provision is implemented by VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim, or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. 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. The issue of entitlement to SMC is treated like a claim for increased compensation and is part and parcel of an increased rating claim; entitlement is an inferable issue anytime a veteran is asking for an increase in benefits. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). 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). Thus, 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)). In summary, determining the appropriate effective date for an increased rating under the effective date statutes and regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received (the "date of claim"), and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400 (o)(2) SMC may be granted if the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran's service-connected disability or disabilities is permanently housebound. 38 U.S.C. § 1114(s). This second requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. The following factors will considered in determining whether the veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). All of the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) do not have to exist before a favorable rating may be made. The particular personal functions which the 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 the 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); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352 (a) must be present for a grant of SMC based on need for aid and attendance). Here, the Veteran contends that the issue of aid and attendance was raised during the course of his initial claim for service connection for PTSD, therefore warranting the same effective date that service connection was granted for PTSD (May 18, 2011). By way of background, the Veteran's May 2011 claim to reopen a previously denied claim for service connection of PTSD was denied in an October 2011 rating decision. The Veteran appealed, and in a July 2018 Board decision, service connection for PTSD was granted. An August 2018 rating decision promulgated that grant with an effective date of May 18, 2011, the date of the Veteran's claim to reopen. Thereafter, in October 2018, the Veteran filed a claim for SMC based on the need for aid and attendance and submitted an Examination for Housebound Status report completed by a private provider on September 12, 2018. In accordance with the legal standard set forth above, SMC for aid and attendance was granted effective September 12, 2018. The Veteran appealed the effective date, arguing that the issue of aid and attendance was raised by the record with the Veteran's 2011 claim for service connection for PTSD. The Board finds that an effective date prior to September 12, 2018, is not warranted. The Board has carefully considered the evidence of record, noting that prior to March 2015, VA accepted informal claims for benefits. See 38 C.F.R. § 3.155 (a) (2014). However, this regulation was repealed effective March 24, 2015. See 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating informal claims). VA benefits claims received on or after March 24, 2015, must be on the appropriate application form as prescribed by the Secretary. See 38 C.F.R. §§ 3.155; 3.160(a); Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs, 818 F.3d 1336, 1350-52 (Fed. Cir. 2016) (upholding new regulations). However, there is no indication from the Veteran prior to October 2018 that he wished to apply for an aid and attendance benefit. Likewise, a review of the medical evidence of record does not show a factual indication that the Veteran required the aid and attendance of another person. While a September 2011 evaluation found the Veteran often stayed in bed all day due to depression, the examiner specifically noted that the Veteran was able to provide self-care as detailed in 38 C.F.R. § 3.352 (a). Additionally, in a private mental health assessment in March 2015, the evaluator specifically indicated the Veteran was able to complete activities of daily living and did not need assistance. A review of the evidence shows a March 2017 medical opinion in which the Veteran's treating psychiatric provider stated that he was capable of handling his own VA benefits independently without a fiduciary. The Veteran also appeared for a Board hearing regarding his claim for PTSD in March 2017, and testified that he could not be alone, in the context that he drove to the Board hearing (held at the Regional Office) with his wife and children. However, this statement does not indicate that the Veteran was unable to care for himself to the extent that an award of SMC for aid and attendance was warranted, or that he was seeking such a benefit. Again, to the extent that the Veteran's testimony constitutes an informal claim, it occurred after March 2015. 38 C.F.R. § 3.155. Accordingly, the Board finds the evidence received prior to the October 2018 claim did not explicitly or implicitly raise the issue of SMC aid and attendance. There is no evidence that he was confined to his bed or required assistance with hygiene, eating, or medication management. Likewise, the record does not reflect an inability to attend to the wants of nature. The Board also reviewed evidence received after October 2018, including a December 2018 statement by the Veteran's spouse that was received in January 2019. In the statement, the Veteran's wife indicated that the Veteran had been totally immobilized and in need of aid and attendance since 2003 due to his PTSD symptoms and a lack of relief with medication. This evidence was received after the current effective date and additionally offered no specific date within the appeal period, or within the one-year lookback period for increased ratings, where the Veteran's condition worsened to the point of requiring aid and attendance. The statement referenced the loss of an emotional support dog in the previous year, but there is no specific date or specific behavior mentioned associated with that loss. There must be a factual basis for assigning an effective date. Here, the spouse's statement was received in December 2018, after the date of receipt of claim for SMC for aid and attendance. An effective date earlier than the date of claim is only warranted when the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. As the spouse's statement asserts that the Veteran's need for aid and attendance began long prior to the one-year lookback period, it cannot be said that it is factually ascertainable that entitlement to aid and attendance arose in the one-year period preceding the date of receipt of claim SMC based on the spouse's statement. Thus, the Board finds such evidence does not reflect an incapacity to the extent that the Veteran required care or assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment prior to September 12, 2018. Indeed, claimants are presumed to be seeking the maximum benefit possible unless the claimant expresses satisfaction for a lower level of benefits. AB v. Brown, 6 Vet. App. 35, 38 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008). However, in this case, at no time prior to September 12, 2018, was it factually evident by medical evidence, a physician's report or request by the Veteran that aid and attendance was requested or necessary. Therefore, even if the Veteran's claim for PTSD was also an inferred issue for SMC aid and attendance that must be considered (see Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)), prior to September 12, 2018, the evidence of record does not show the Veteran was in need of aid an attendance under the provisions of 38 U.S.C. § 1114. To the contrary, the VA medical examiners both specifically stated he was able to provide his own self-care. The Board does not doubt the veracity of the Veteran's spouse's statements as to the severity of the Veteran's condition, or the care that he requires. Indeed, this is reflected in the award of a 100 percent rating for PTSD and the separate award of SMC for aid and attendance. However, for the reasons discussed above, the earliest date for which SMC for aid and attendance may be awarded is September 12, 2018, the date of the Veteran's Examination for Housebound Status. The appeal is denied. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Miranda 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.