Case A22008483

MICHELLE P. KATZ · 2022 · Case ID: A22008483

DENIED

Summary

The veteran, who served from August 1977 to October 1981, appeals the denial of entitlement to an earlier effective date for special monthly compensation (SMC) based on aid and attendance. The veteran sought an effective date prior to January 23, 2014, referencing medical evidence from July 2007 suggesting limitations in daily activities. The Board reviewed lay statements from the veteran's parents and wife, as well as VA examination reports from March 2007, July 2007, July 2011, and February 2013. The lay statements indicated some dependence on his wife for tasks like dressing and household chores, and that he avoided driving due to medication. However, the Board found these statements did not specifically link the need for aid and attendance to his service-connected lumbar strain and left shoulder tendinosis. VA examinations showed the veteran could manage most activities of daily living independently, with only occasional help from his wife for specific tasks like putting on trousers. The Board concluded that the evidence prior to January 23, 2014, did not demonstrate the veteran was so helpless as to require regular aid and attendance due to his service-connected disabilities. The Board also noted no formal or informal claim for SMC was filed before January 23, 2014. The veteran also suggested SMC should have been inferred during a prior TDIU appeal, but the Board found he did not meet the criteria for housebound status (SMC-s) as TDIU was granted based on multiple disabilities, not a single one, and he was not permanently housebound or bedridden. The appeal for an earlier effective date for SMC was denied.

Rationale

Lay statements and medical evidence did not establish need for regular aid and attendance prior to Jan 23, 2014.; Veteran was generally capable of independent activities with occasional help.; No formal or informal claim for SMC filed prior to Jan 23, 2014.

Special Benefit

SMC - AID & ATTENDANCE

Docket No.

200622-93438

Full Decision Text

Citation Nr: A22008483
Decision Date: 05/10/22 Archive Date: 05/10/22

DOCKET NO. 200622-93438
DATE: May 10, 2022

ORDER

Entitlement to an effective date prior to January 23, 2014, for the award of special monthly compensation based on aid and attendance (SMC) is denied.

FINDING OF FACT

Prior to January 23, 2014, the evidence of record weighs persuasively against a finding that the Veteran's service-connected disabilities, considered independently of his nonservice-connected disabilities, were so disabling as to require the regular aid and attendance of another person.

CONCLUSION OF LAW

The criteria for entitlement to an effective date prior to January 23, 2014, for the award of SMC based on aid and attendance were not met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.350, 3.351, 3.352, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1977 to October 1981.

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review.

This issue was adjudicated in a June 2020 AMA rating decision. That same month, the Veteran appealed the rating decision and selected the direct review docket. See June 2020 VA Form 10182. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction's (AOJ) June 2020 rating decision on appeal. 38 C.F.R. § 20.301.

The Veteran generally asserts in a June 2020 statement that he should have been awarded an earlier effective date for the award of SMC based on aid and attendance. The Veteran does not identify the date he believes should have been used for the award of this benefit. However, he refers to medical evidence in the record showing that his back pain affected his activities of daily living as early as July 2007. While not explicitly arguing so, the Veteran's statement essentially suggests that the issue of entitlement to SMC should have been inferred during his prior appeal of an increased rating claim for service-connected lumbar strain.

Entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Accordingly, the Board will consider whether the Veteran was eligible for SMC at the time of his perfected appeal of an October 2007 rating decision seeking entitlement to an increased rating of his lumbar spine disability.

As will be discussed in more detail below, the Board finds that a close review of the record does not show that the Veteran has ever initiated a claim for SMC prior to January 23, 2014, or that his service-connected disabilities rendered him so disabled as to require regular aid and attendance prior to this date. As such, the Board finds that an effective date prior to January 23, 2014, is not warranted, and the Veteran's claim must be denied.

Legal criteria

Generally, the effective date of an evaluation and award of compensation will be the date of receipt of the claim, or the date entitlement arose, whichever is later in time. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Under 38 U.S.C. § 1114(l), SMC is payable if, as the result of service-connected disability, a claimant has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350.

Need for aid and attendance means being so helpless as to require the aid and attendance of another person. 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether a claimant 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.

It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the claimant 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 claimant 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 § 3.352(a) must be present for a grant of SMC based on need for aid and attendance).

For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether a claimant is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a).

Evidence and analysis

Turning to the evidence of record, a March 2007 statement from the Veteran's parents indicates the Veteran did "very little of the house hold chores" due to functional impairments from his shoulders and hands. This letter also references the Veteran's loss of an "active lifestyle" and concerns that the Veteran's driving puts him at risk of injury on the road. However, the letter attributes the Veteran's loss of abilities to not only his service-connected left shoulder bicipital tendinosis and lumbar strain, but also medical conditions in his right shoulder, both hands, and both legs, which were not service-connected at the time.

A March 2007 statement from the Veteran's wife also asserts that the Veteran became more dependent on her with tasks such as getting dressed, laundry, cooking, and other household chores. She also stated the Veteran seldom drove due to concerns over the impact of the medications he takes. However, the Veteran's wife generally attributes these limitations to "physical disabilities" without explaining what, if any, impact the Veteran's service-connected disabilities had on the need for assisting the Veteran with these various tasks.

In July 2007, the Veteran underwent a VA examination to evaluate the severity of his lumbar spine disability. The examiner was asked to comment on the Veteran's employability given his service-connected disabilities. The Veteran reported low back pain that was constant and aggravated with prolonged walking, prolonged sitting or riding in a car. On physical examination, he was noticed to have a slight limp while using his cane as well as a slow gait velocity. The examiner concluded that the Veteran could seek gainful employment with some restrictions to compensate for functional limitations resulting from his lumbar spine and left shoulder disabilities.

At a July 2011 VA general medical examination, the Veteran complained of a constant dull ache in the lower lumbar area. He reported that there was generally no radiation of the pain but occasionally it may radiate to the left leg. He used a cane to ambulate. There was no bowel or bladder complaints or other associated symptoms. The Veteran was able to walk and transfer. He was also able to eat, groom and bathe himself, as well as perform his toileting. He did occasionally receive help from his wife, especially when putting on trousers, as the examiner noted that the bending brought on a feeling of dizziness.
gainful employment with some restrictions to compensate for functional limitations resulting from his lumbar spine and left shoulder disabilities.

At a July 2011 VA general medical examination, the Veteran complained of a constant dull ache in the lower lumbar area. He reported that there was generally no radiation of the pain but occasionally it may radiate to the left leg. He used a cane to ambulate. There was no bowel or bladder complaints or other associated symptoms. The Veteran was able to walk and transfer. He was also able to eat, groom and bathe himself, as well as perform his toileting. He did occasionally receive help from his wife, especially when putting on trousers, as the examiner noted that the bending brought on a feeling of dizziness. The Veteran also reported at this examination that while he tends to avoid driving, he is able to drive himself.

At a February 2013 VA examination, the Veteran reported that he managed his activities of daily living by himself, but that his wife helped with tasks such as putting on his trousers or lacing his shoes.

Here, following a careful review of the record, the Board finds that the evidence prior to January 23, 2014 persuasively weighs against a conclusion that the effects of the Veteran's service-connected disabilities at the time rendered him housebound or in need of regular aid and attendance, as contemplated by VA regulations. Prior to January 23, 2014, the record shows that the Veteran had not been rendered so disabled as to require regular aid and attendance. Instead, both lay statements and medical evidence prior to January 23, 2014, reflected that with the exception of some occasional help from his wife in performing tasks such as putting on his trousers or lacing his shoes, the Veteran was generally capable of functioning independently in activities that included ambulation by foot, driving, grooming, bathing, toileting and eating. A close analysis of the lay assertions of record presented no evidence that the Veteran was unable to take care of himself as a result of his service-connected disabilities prior to January 23, 2014.

Further, the Board concludes that there is no evidence of a claim for SMC, whether formal or informal, until the January 23, 2014, statement from the Veteran. Therefore, the Board finds that an effective date prior to this date for the award of SMC based on aid and attendance is not warranted.

Finally, the Veteran also generally asserted in his June 2020 statement that the issue of entitlement to SMC should have been inferred during his appeal seeking entitlement to a total disability rating (TDIU). In doing so, he indirectly suggested that he may be entitled to SMC based on the statutory housebound rate under 38 U.S.C. § 1114(s) as a result of his award of TDIU, which he claimed was awarded due to his service-connected low back disability.

SMC at the housebound (s) rate is payable if a Veteran has a single service-connected disability rated at 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

For the purpose of meeting the first criterion (a single service-connected disability rated at 100 percent), ratings of 100 percent may be based on any of the following grants of a total rating: on a schedular basis; on an extraschedular basis; on the basis of a TDIU if granted for a single disability; or, on the basis of a temporary total rating.

In this case, a November 2013 decision clearly shows that the Board awarded the Veteran a TDIU on an extraschedular basis due to both a service-connected left shoulder bicipital tendinosis and a service-connected lumbar strain; thus, the evidence does not show that TDIU was awarded based on a single service-connected disability. The record also shows that the Veteran has been in receipt of a combined 20 percent evaluation effective October 25, 1981; a combined 40 percent evaluation effective May 30, 2001; and a combined 50 percent evaluation effective February 28, 2013. Consequently, the evidence does not show that he had additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the service-connected left shoulder and lumbar spine disabilities. Further, the Veteran has never asserted, nor has the evidence of record established, that he has been bedridden at any time due to his service-connected disabilities. As such, he does not meet the criteria for SMC under 38 U.S.C. § 1114(s).

In
that the Veteran has been in receipt of a combined 20 percent evaluation effective October 25, 1981; a combined 40 percent evaluation effective May 30, 2001; and a combined 50 percent evaluation effective February 28, 2013. Consequently, the evidence does not show that he had additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the service-connected left shoulder and lumbar spine disabilities. Further, the Veteran has never asserted, nor has the evidence of record established, that he has been bedridden at any time due to his service-connected disabilities. As such, he does not meet the criteria for SMC under 38 U.S.C. § 1114(s).

In sum, after carefully weighing the evidence of record, the Board finds that the Veteran's service-connected disabilities, considered alone, did not cause him to be so helpless as to require regular aid and attendance of another person prior to January 23, 2014. Further, there is no evidence the Veteran filed any formal or informal claim seeking entitlement to SMC benefits prior to this date. Accordingly, the Board concludes that entitlement to an earlier effective date for the award of SMC based on the need for aid and attendance is not warranted.

The claim is denied.

MICHELLE P. KATZ

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Komperda, 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.

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