Case A26032142

Summary

The Veteran, who served from January 1982 to July 1988 and again from January 2004 to February 2005, appeals a June 2025 rating decision concerning Special Monthly Compensation (SMC) based on the need for regular aid and attendance. The appeal specifically concerns the effective date for this benefit. The Veteran sought an earlier effective date of March 1, 2023, for the SMC award. The Board reviewed the evidence of record as of a May 2025 supplemental claim decision, noting that the appeal was advanced on the docket, allowing for a decision before the full period for modifying the Notice of Disagreement had elapsed. The Veteran was previously awarded a 100 percent rating for PTSD with secondary Major Depressive Disorder effective April 20, 2009. The Board considered a December 2024 private medical opinion, which concluded that the Veteran requires regular aid and attendance since March 2023 due to severe PTSD and MDD symptoms, including anger outbursts, impaired judgment, and suicidal ideation, posing a danger to himself. The Board found this private opinion persuasive, resolving doubt in the Veteran's favor and establishing the entitlement date as March 1, 2023. Consequently, the Board granted SMC based on the need for regular aid and attendance effective March 1, 2023.

Rationale

Private opinion found Veteran requires aid and attendance since March 2023; Resolving benefit of doubt in Veteran's favor; Entitlement arose March 1, 2023

Full Decision Text

Citation Nr: A26032142
Decision Date: 04/08/26	Archive Date: 04/08/26

DOCKET NO. 260209-640888
DATE: April 8, 2026

ORDER

Entitlement to an effective date of March 1, 2023 for the award of special monthly compensation (SMC) based on the need for regular aid and attendance is granted.

FINDING OF FACT

When resolving the benefit of the doubt in his favor, the Veteran has been in the need of regular aid and attendance of another person since March 1, 2023; thus,  the date entitlement arose is March 1, 2023.

CONCLUSION OF LAW

The criteria for an effective date of March 1, 2023, for the award of SMC based on the need for regular aid and attendance have been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400..

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1982 to July 1988 and from January 2004 to February 2005.

This matter comes on appeal from a June 2025 rating decision, which awarded SMC based on the need of aid and attendance, effective April 12, 2024.  By way of background, this matter was initially denied in an August 2024 rating decision.  In January 2025, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issue of entitlement to SMC most recently addressed in the August 2024 rating decision.  

In May 2025, the agency of original jurisdiction (AOJ) issued a supplemental claim decision, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision.  In June 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the May 2025 rating decision.  In June 2025, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2025 decision.  

In the February 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the May 2025 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301.  If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

The Board recognizes that it is adjudicating this appeal less than one year since issuance of the June 2025 rating decision on appeal.  Under 38 C.F.R. § 20.202(c)(2), a claimant may modify the information identified in the Notice of Disagreement for the purpose of selecting a different evidentiary record option as described in § 20.202(b).  In Williams v. McDonough, 37 Vet. App. 305, 311 (2024), the United States Court of Appeals for Veterans Claims (Court) held that section 20.202(c) requires the Board to wait the full period allowed by that regulation for the Veteran to modify a Notice of Disagreement before it may proceed to issue a decision.  It further held that the Board's failure to do so is not harmless error.  Williams, 37 Vet. App. at 312. 

However, in Williams, the Court did not address the issue of whether an appeal being advanced on the Board's docket, as here, affects the operation of section 20.202(c).  In this case, the appeal has been advanced on the docket.  Having the Veteran wait longer for a decision would contravene the principle and purpose of advancing
 Veterans Claims (Court) held that section 20.202(c) requires the Board to wait the full period allowed by that regulation for the Veteran to modify a Notice of Disagreement before it may proceed to issue a decision.  It further held that the Board's failure to do so is not harmless error.  Williams, 37 Vet. App. at 312. 

However, in Williams, the Court did not address the issue of whether an appeal being advanced on the Board's docket, as here, affects the operation of section 20.202(c).  In this case, the appeal has been advanced on the docket.  Having the Veteran wait longer for a decision would contravene the principle and purpose of advancing a case on the docket, which is to expedite appellate review of a claim due to circumstances which warrant earlier consideration and determination of the case, such as the Veteran being seriously ill or under severe financial hardship. See 38 U.S.C. § 7107(b).  In this case, the Board finds that notwithstanding the Court's holding in Williams, it may issue a decision in the appeal before the time allotted under 38 C.F.R. § 20.202(c) has elapsed, as the appeal has been advanced on the Board's docket.

As a final preliminary matter, importantly, in an April 2024 rating decision, the AOJ awarded a maximum 100 percent rating for the Veteran's service-connected posttraumatic stress disorder (PTSD) with secondary major depressive disorder (MDD), effective April 20, 2009.  The Veteran's representative has asserted that the Veteran's claim for SMC has been ongoing since the date of award of service connection for PTSD.  In this regard, 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); see also Bradley v. Peake, 22 Vet. App. 280 (2008).   

Subsequently, in April 2024, the Veteran submitted a VA Form 21-526EZ requesting SMC based on the need for aid and attendance.  In light of Akles, the Board finds that this submission can be reasonably construed as a Supplemental Claim under the Appeals Modernization Act (AMA) seeking the "inferred issue" of entitlement to SMC based on the need of aid and attendance.  See Chisholm v. Collins, 38 Vet. App. 140 (2025) (holding that while a supplemental claim needs to be filed on a form prescribed by the Secretary, it does not need to be filed on a specific supplemental claim form).

Entitlement to an earlier effective date for the award of SMC

The Veteran is seeking an effective date prior to April 12, 2024 for the award of SMC based on the regular need for aid and attendance.  The Veteran's representative has explicitly asserted that a March 2023 effective date is warranted.  

The Court has held that, on a claim for original or increased disability rating, a claimant will generally be presumed to be seeking maximum benefit allowed by law and regulation and, thus, such claim remains in controversy where less than maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  However, the Court cited the case of Hamilton v. Brown, 4 Vet. App. 528 (1993) for the proposition that a claimant may limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law.  Id. at 39.  To do so, the Court indicated that a claimant would have to clearly express an intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition.

Here, the Veteran, through his representative, expressed his belief that his SMC rating based on aid and attendance was warranted from March 2023.  Thus, consistent with AB and Hamilton, the Board finds that the Veteran has limited his appeal to seeking an effective date of March 2023.  

In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1).  For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim
MC rating based on aid and attendance was warranted from March 2023.  Thus, consistent with AB and Hamilton, the Board finds that the Veteran has limited his appeal to seeking an effective date of March 2023.  

In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1).  For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.  38 U.S.C. § 5110; 38C.F.R. §3.400(o)(2).  If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim.  In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase.  See generally Harper v. Brown, 10 Vet. App. 125 (1997).

Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress himself/herself or to keep himself/herself 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 of the claimant to feed himself/herself 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 the claimant from the hazards or dangers inherent in his/her daily environment.

In sum, in light of the caselaw discussed above, this matter has been ongoing since the award of a 100 percent rating for PTSD with MDD from April 20, 2009.  Importantly, the record includes a December 2024 private opinion.  The examiner concluded that based on a clinical videoconference interview with the Veteran and careful review of the entire record, the Veteran is in need of regular aid and attendance since March 2023.  The examiner observed that the Veteran has total occupational and social impairment due to his service-connected PTSD and MDD resulting in anger outbursts, physical and verbal altercations, severe impaired judgment, determined mind set when facing intentional resistance, as well as persistent suicidal ideation.  The constellation of symptoms impose a real danger from keeping himself safe from daily hazards as well as self-harm due to his impaired concentration, deteriorating memory, irritability and anger issues, and suicidal ideation.  

In turn, the Board finds that in light of the private opinion, the date entitlement arose for SMC based on aid and attendance was March 1, 2023.  As such, when resolving the benefit of the doubt in the Veteran's favor, an effective date of March 1, 2023, for the award of SMC is warranted.  

In conclusion, SMC based on the need for the regular aid and attendance by another person is granted from March 1, 2023.  38 U.S.C. § 1114 l); 38 C.F.R. §§ 3.350, 3.3400, 3.352(a).  As discussed above, the Board has made a jurisdictional finding that the Veteran has limited his appeal.  As the award was made from March 1, 2023, this claim has been granted in full.  In reaching this determination, the Board finds that the evidence is, at least, in relative equipoise.  

 

 

M. Pryce

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.N. Moats, 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.