Case A22016744

Summary

The Veteran served on active duty from January 1955 to March 1955. The Veteran appealed the February 2020 rating decision, which granted service connection for chronic renal disease involving both kidneys (previously rated as left kidney atrophy and hydronephrosis) with a 100 percent rating effective October 29, 2019. The appeal specifically contested the effective date of the award. The Veteran initially filed a claim for an increased rating on November 30, 2018. After receiving VA Form 20-0995 on October 29, 2019, VA issued the February 2020 decision granting the 100 percent rating. The Board found that the Veteran continuously pursued the claim since November 30, 2018, and applying the benefit of the doubt, granted an effective date of November 30, 2018. The Board also remanded the issue of entitlement to Special Monthly Compensation (SMC) based on the need for aid and attendance, citing a duty to assist error for failing to schedule a VA examination. The VA treatment records indicated a potential need for assistance with daily activities, but the medical evidence was unclear on the extent of helplessness. The case was remanded for a VA aid and attendance examination to determine if the Veteran requires regular aid and attendance due to his service-connected disabilities.

Rationale

Claim continuously pursued since November 30, 2018; Applying benefit of the doubt; February 2020 decision granted 100% rating effective October 29, 2019

Full Decision Text

Citation Nr: A22016744
Decision Date: 08/23/22	Archive Date: 08/23/22

DOCKET NO. 200427-85091
DATE: August 23, 2022

ORDER

Entitlement to an effective date of November 30, 2018, but no earlier, for the grant of service connection for chronic renal disease involving both kidneys is granted.

REMANDED

The issue of entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded.

FINDINGS OF FACT

1.  On November 30, 2018, VA received the Veteran's claim for an increased disability rating for left kidney condition with incontinence and dialysis.

2. A May 2019 rating decision continued the Veteran's 10 percent rating for service-connected left kidney atrophy and hydronephrosis.  

3. In June 2019, the Veteran submitted an application for an increased disability rating for renal failure.

4. On October 29, 2019, VA received VA Form 20-0995, Supplemental Claim Application, for bilateral chronic renal disease. 

5. The February 2020 rating decision on appeal granted evaluation of chronic renal disease involving both kidneys (previously rated as left kidney atrophy and hydronephrosis) and increased the rating to 100 percent effective October 29, 2019.

6. The evidence shows that the Veteran continuously pursued his increased rating claim since the initial filing on November 30, 2018.

CONCLUSION OF LAW

The criteria for entitlement to an effective date of November 30, 2018, for the award of service connection for chronic renal disease involving both kidneys, have been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400, 3.2500.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from January 1955 to March 1955.

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA).  The law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review, and this decision has been written consistent with the new AMA framework.

The rating decision on appeal was issued in February 2020.  In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).  The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in February 2021.

In August 2021, the Board denied entitlement to an effective date prior October 29, 2019, for the award of service connection for chronic renal disease involving both kidneys.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted an April 2022 Joint Motion for Remand (JMR), vacated the August 2021 Board decision and remanded the issue to the Board for readjudication.

In July 2022, the Veteran's representative reported that the Veteran was in need of regular aid and attendance of another due to his service-connected bilateral kidney condition.  In light of the Veteran's representative's assertion and the other evidence of record, the Board finds that the issue of entitlement to SMC based on the need for aid and attendance is reasonably raised by the record and is part and parcel of the increased rating claim.  See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (stating 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); 38 C.F.R. § 3.155 (d) (2).

An effective date of November 30, 2018, for the award of service connection for chronic renal disease involving both kidneys (previously rated as left kidney atrophy and hydronephrosis).  

The February 2020 rating decision granted service connection for chronic renal disease involving both kidneys (previously rated as left kidney atrophy and hydronephrosis), assigning a 100
  See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (stating 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); 38 C.F.R. § 3.155 (d) (2).

An effective date of November 30, 2018, for the award of service connection for chronic renal disease involving both kidneys (previously rated as left kidney atrophy and hydronephrosis).  

The February 2020 rating decision granted service connection for chronic renal disease involving both kidneys (previously rated as left kidney atrophy and hydronephrosis), assigning a 100 percent rating effective October 29, 2019.

Generally, the effective date for the grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, it will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400, 3.2500 (h).

Regulations defining a "claim" were revised, effective March 24, 2015.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014).  The revision eliminated informal claims and required claims on specific forms.

Prior regulations held that a claim was a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1 (p) (2013). 

Effective for claims filed on or after March 24, 2015, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). 

"[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition."  DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (citing to the rule of 38 U.S.C. § 5110 (a) that the effective date shall be fixed in accordance with "facts found").

In this case, on November 30, 2018, VA received the Veteran's claim for an increased disability rating for left kidney condition with incontinence and dialysis.  A May 2019 rating decision continued the Veteran's 10 percent disability rating for his service-connected left kidney atrophy and hydronephrosis.  In June 2019, the Veteran submitted an application for an increased disability rating for renal failure.  In response to VA's request in early October 2019 that his application be on the proper VA Form, the Veteran submitted VA Form 20-0995, Supplemental Claim Application, for bilateral chronic renal disease, which was received by VA on October 29, 2019.

The February 2020 rating decision granted the Veteran a 100 percent disability rating effective October 29, 2019, for service-connected chronic renal disease involving both kidneys (previously rated as left kidney atrophy and hydronephrosis).  As such, the Veteran continuously pursued his November 30, 2018, claim.  38 C.F.R. § 3.2500 (c) (2019). Under 38 C.F.R. § 3.2500 (f), this section is applicable to claims and requests under the modernized review system as set forth in 38 C.F.R. § 3.2400.

Under 38 C.F.R. § 3.2400 (a), the modernized review system is applicable to all claims, requests for reopening finally decided claims for which VA issues notice of a decision on or after the effective date of the modernized review system. The modernized review system became effective on February 19, 2019.  38 C.F.R. § 19.2 (a).  Because the February 2020 rating decision was issued after February 19, 2019, the regulations regarding continuous pursuit of a claim as set forth in 38 C.F.R. § 3.2500 (c) apply.

Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the February 2020 rating decision granted entitlement to service connection
2400 (a), the modernized review system is applicable to all claims, requests for reopening finally decided claims for which VA issues notice of a decision on or after the effective date of the modernized review system. The modernized review system became effective on February 19, 2019.  38 C.F.R. § 19.2 (a).  Because the February 2020 rating decision was issued after February 19, 2019, the regulations regarding continuous pursuit of a claim as set forth in 38 C.F.R. § 3.2500 (c) apply.

Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the February 2020 rating decision granted entitlement to service connection for chronic renal disease involving both kidneys, constituted an award following a continuously pursued claim under 38 C.F.R. § 3.2500 since the Veteran's award had previously been rated as left kidney atrophy and hydronephrosis.  Accordingly, an effective date of November 30, 2018, for the grant of service connection for chronic renal disease involving both kidneys (previously rated as left kidney atrophy and hydronephrosis) is warranted.  

REASONS FOR REMAND

Entitlement to SMC based on need for regular aid and attendance is remanded.

The issue of entitlement to SMC based on need for regular aid and attendance must be remanded to correct pre-decisional duty to assist error in not scheduling the Veteran for a VA examination in view of evidence that he may be in need of  regular aid and attendance of another person due to his service-connected disabilities.  38 C.F.R. § 20.802.

The Veteran's medical treatment records reflect that the Veteran may be in need of regular aid and attendance of another due to his service-connected disabilities.  Specifically, a January 2018 VA treatment record reflects that the Veteran needs assistance with grocery shopping and cooking, assistance with laundry, bathing, taking medications and driving.  However, the medical evidence of record is not clear as to whether the Veteran's service-connected disabilities result in him being so helpless as to be in need of regular aid and attendance.  Therefore, the Veteran should be provided an opportunity to report for a VA examination to ascertain whether he is so helpless as to be in need of regular aid and attendance of another person due to his service-connected disabilities.

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The matter is REMANDED for the following action:

1. Schedule the Veteran for a VA aid and attendance examination to address whether the following are present as a result of his service-connected disabilities: (1) inability to dress or undress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this does not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacking at the back, etc.); (3) inability to attend to the wants of nature; (4) inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; or (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment.  The examiner should limit his or her consideration to the effects of the Veteran's service-connected disabilities and should disregard the effects of the Veteran's nonservice-connected disabilities.

 

 

Carole R. Kammel

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. G. LeMoine, 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.