Citation Nr: A25035987 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 250224-516323 DATE: April 18, 2025 ORDER Entitlement to an effective date of January 1, 2012, but no earlier, for the award of special monthly compensation based on loss of use of both hands is granted. Entitlement to an effective date of January 1, 2012, but no earlier, for the award of special monthly based on loss of use of both feet is granted. Entitlement to an effective date of January 1, 2012, but no earlier, for the award of special monthly compensation under 38 U.S.C. § 1114(o) based on the award of two distinct special monthly compensation awards under (l) and (m) is granted. Entitlement to an effective date of January 1, 2012, but no earlier, for the award of an additional allowance under 38 U.S.C. § 1114(r)(1) based on the award of special monthly compensation under 38 U.S.C. § 1114(o) and the need for aid and attendance is granted. FINDINGS OF FACT 1. The issue of entitlement to special monthly compensation based on the loss of use of the hands and/or feet is an inferred element of the Veteran's initial rating for Parkinson's disease, which has a February 20, 2011, date of claim, and these inferred special monthly compensation issues remained pending from this date of claim until the Board's June 2023 decision that granted special monthly compensation awards for loss of use of the hands and feet and corresponding awards under 38 U.S.C. § 1114(o) and 38 U.S.C. § 1114(r)(1). 2. The Veteran has as least as likely as not experienced loss of use of the hands and feet due to service-connected disability since approximately January 1, 2012, but the evidence is persuasively against a finding that he experienced loss of use of hands and/or feet due to service-connected disability prior this date. 3. VA has conceded the Veteran has been in the need of regular aid and attendance due to service-connected disability during the period in which he has experienced loss of use of the hands and feet. CONCLUSIONS OF LAW 1. The criteria for an effective date of January 1, 2012, but no earlier, for the award of special monthly compensation based on loss of use of both hands have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of January 1, 2012, but no earlier, for the award of special monthly based on loss of use of both feet have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date of January 1, 2012, but no earlier, for the award of special monthly compensation under 38 U.S.C. § 1114(o) based on the award of two distinct special monthly compensation awards under (l) and (m) have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date of January 1, 2012, but no earlier, for the award of an additional allowance under 38 U.S.C. § 1114(r)(1) based on the award of special monthly compensation under 38 U.S.C. § 1114(o) and the need for aid and attendance have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1971 to January 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2024 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that adjudicated a higher-level review request for a July 2023 rating decision implemented a June 2023 Board decision that granted special monthly compensation awards for loss of use of the hands and feet and corresponding awards under 38 U.S.C. § 1114(o) and 38 U.S.C. § 1114(r)(1). In February 2025, the Veteran's authorized representative submitted a timely notice of disagreement and requested direct review by a Veterans Law Judge of the effective dates of his special monthly compensation awards for loss of use of the hands and feet and corresponding awards under 38 U.S.C. § 1114(o) and 38 U.S.C. § 1114(r)(1). The Board acknowledges the period to change the selected review option under the Appeals Modernization Act (AMA) for the July 2024 rating decision has not yet expired; however, the Veteran's representative submitted a written statement with his February 2025 notice of disagreement explicitly waiving the remaining period to select a different review option. Accordingly, the Board will proceed with the merits of the Veteran's appeal at this time. Applicable Evidentiary Window In accordance with the provisions of the AMA, the Board's review in this case is limited to evidence considered by the Agency of Original Jurisdiction (AOJ) in the July 2024 rating decision on appeal, which, again, was based on the evidentiary record at the time of a prior July 2023 rating decision due to the Veteran's request for a higher-level review following that decision. See 38 C.F.R. § 20.301; see also Cook v. McDonough, 36 Vet. App. 175 (2023). The Board cannot consider evidence associated with the claims file after the issuance of the July 2023 rating decision. If evidence was associated with the claims file after the evidentiary record closed, the Board has not considered it in its decision. See 38 C.F.R. § 20.300. The Veteran is advised of the supplemental claim option if he desires consideration of additional evidence not encompassed by the record for the present appeal. See 38 C.F.R. § 3.2501. Analysis The aforementioned July 2023 rating decision implemented the Board's grant of special monthly compensation awards for loss of use of the hands and feet and corresponding awards under 38 U.S.C. § 1114(o) and 38 U.S.C. § 1114(r)(1), assigning a September 22, 2018, effective date based on an intent to file a claim received on that date, which preceded a formal May 2019 increased rating claim that explicitly referenced special monthly compensation based on the loss of use of the hands and/or feet. The Veteran asserts earlier effective dates are warranted. Special monthly compensation is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The rate of special monthly compensation varies according to the nature of the veteran's service-connected disabilities. Basic levels of special monthly compensation are listed at 38 U.S.C. § 1114(k). Additional levels and provisions of special monthly compensation are provided at 38 U.S.C. § 1114(l), (m), (n), (o), (p), (r), (s), and (t). Here, the Veteran has been awarded special monthly compensation under 38 U.S.C. § 1114(l) for loss of use of both feet and special monthly compensation under 38 U.S.C. § 1114(m) for loss of use of both hands, warranting an award of special monthly compensation under 38 U.S.C. § 1114(o) that is elevated to the rate under 38 U.S.C. § 1114(r)(1) due to the Veteran's need of regular aid and attendance. The propriety of these awards, as well as entitlement to additional special monthly compensation, is not encompassed by the present appeal, as the scope of the appeal is limited to the initial effective dates assigned by the AOJ. Generally, except as otherwise provided, the effective date of an evaluation and compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. While the AOJ's decision suggests a date of claim on September 22, 2018, the Board notes the Veteran had several rating appeals, as well as an explicit special monthly compensation claim, pending at that time - all of which have been related back to the Veteran's initial February 20, 2011, service connection claim for Parkinson's disease. In this regard, the Board notes its April 2020 decision regarding the effective date of the Veteran's initial award of special monthly compensation based on the need of regular aid and attendance found an inferred special monthly compensation claim was an element of the Veteran's initial Parkinson's disease rating, in accordance with Akles v. Derwinski, 1 Vet. App. 118, 121 (1991), granting a February 20, 2011, for the award of special monthly compensation based on the need of regular aid and attendance. Similarly, the issue of entitlement to the higher special monthly compensation benefits, to include those based on loss of use of the hands and feet, which were eventually granted by the Board in June 2023, was also an inferred element of the initial rating for Parkinson's disease. Given a February 20, 2011, date of claim, the only issue that remains is the date entitlement arose. After sympathetic review of the evidence of record, the Board finds the Veteran has at least as likely as not experienced loss of use of the hands and feet since approximately January 1, 2012. In March 2021, the Veteran submitted a retrospective opinion from a private physician, D.L., M.D., that includes a detailed analysis of the Veteran's treatment history and indicates the Veteran has experienced loss of use of the hands and feet "since at least 2012." The Board finds the March 2021 private opinion to be the most persuasive evidence of record regarding the onset of the loss of use of the hands and feet, which was later confirmed on examination, because of its in-depth nature and consistency with the other evidence of record. The Board recognizes the March 2021 private opinion does not establish a specific date in 2012 in which the Veteran's impairment increased, but it notes treatment records from as early as February 2012 to support its conclusion. Resolving reasonable doubt in the Veteran's favor, the Board finds it necessary to assign a January 1, 2012, effective date to ensure he is adequately compensated for his impairment from 2012 moving forward. To this extent, the Veteran's appeal is granted. (Continued on the next page) ? As noted in the March 2021 private opinion, it appears the Veteran maintained effective function of both the hands and feet beyond that which would be equally well-served by amputation with use of a suitable prosthetic appliance prior to 2012. The March 2021 private opinion cites an April 2011 treatment note that indicates the Veteran was able to walk with mild difficulty at that time with other limited impairment that did not explicitly include the upper extremities to illustrate how the Veteran's disability picture began to deteriorate in early 2012, after which he experienced extreme difficulty walking with frequent falls and the inability to manipulate objects with hands. Again, this assessment is consistent with the other evidence of record to include lay reports. As a result, the Board finds the evidence is persuasively against a finding that the Veteran experienced loss of use of hands and/or feet prior to January 1, 2012, and the Veteran has not asserted an effective date is warranted prior to that date in the context of this appeal. In sum, the record establishes a February 20, 2011, date of claim for the special monthly compensation issues encompassed by this appeal since the Veteran is presumed to be seeking the maximum benefit authorized by law when seeking higher ratings for his service-connected disabilities. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The evidence further establishes the Veteran has as least as likely as not experienced loss of use of the hands and feet since approximately January 1, 2012, due to the persuasive value of the March 2021 private opinion he submitted to support his claims, which constitutes the date his entitlement to special monthly compensation under subsections (l) and (m) of 38 U.S.C. § 1114 arose. The entitlement under subsections (l) and (m) of 38 U.S.C. § 1114 warrants an award under 38 U.S.C. § 1114(o) with an increase to the rate authorized by 38 U.S.C. § 1114(r)(1) due to the Veteran's need of regular aid and attendance from the effective date of entitlement under 38 U.S.C. § 1114(o). Thus, entitlement to January 1, 2012, effective dates for the special monthly compensation awards for loss of use of the hands and feet and corresponding awards under 38 U.S.C. § 1114(o) and 38 U.S.C. § 1114(r)(1) is warranted. To this extent, the Veteran's appeal is granted. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.