Case A26039969

MARJORIE A. AUER · 2026 · Case ID: A26039969

MIXED

Summary

The veteran, who served from January 1960 to January 1963 and again from December 1964 to January 1981, appeals the denial of Special Monthly Compensation (SMC) and the effective date for a Total Disability based on Individual Unemployability (TDIU) claim. The Board found that the veteran's TDIU claim was effectively filed on August 17, 2022, based on a representative's letter to the VA inquiring about the claim's status, and granted TDIU effective from that date, resolving reasonable doubt in the veteran's favor. The Board denied entitlement to SMC, finding that the veteran's service-connected PTSD, rated at 70 percent, did not meet the criteria for housebound status or the need for regular aid and attendance. While the veteran's TDIU is based solely on PTSD, the Board noted that the veteran does not require assistance with basic activities of daily living such as dressing, bathing, or toileting, and while a caregiver assists with shopping and housekeeping, this does not meet the threshold for regular aid and attendance. The Board also clarified that the TDIU rating, even if based on a single disability, could potentially satisfy the requirement for a single 100 percent disability for SMC purposes, but the veteran's specific circumstances did not meet the criteria for either housebound or aid and attendance benefits.

Rationale

Claim for TDIU filed August 17, 2022.; Representative's December 2022 letter indicated TDIU claim was pending.; Resolving doubt in veteran's favor, August 17, 2022, established as effective date.

Special Benefit

TDIU; EARLIER EFFECTIVE DATE; SMC

Docket No.

260413-648146

Full Decision Text

Citation Nr: A26039969
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 260413-648146
DATE: April 29, 2026

ORDER

Entitlement to an earlier effective date of August 17, 2022, but no earlier, for a total disability rating based on individual unemployability (TDIU), is granted.

Entitlement to Special Monthly Compensation (SMC) is denied.

FINDINGS OF FACT

1. On March 2, 2023, the Veteran filed a claim for entitlement to total disability based on individual unemployability; there is no record of communication prior to that date indicating an intent to file a claim for TDIU.

2. Resolving reasonable doubt in the Veteran's favor, the Veteran filed a claim for TDIU on August 17, 2022.

3. The evidence of record does not show that the Veteran requires regular aid and attendance of another or that the Veteran is housebound by reason of his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for an effective date of August 17, 2022, but no earlier, for the grant of TDIU have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2022).

2. The criteria for SMC based on the need for aid and attendance or being housebound have not been satisfied. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350(b), (i), 3.352(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1960 to January 1963 and from December 1964 to January 1981.

In the April 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 August 2024 agency of original jurisdiction (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[s], 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 period to change AMA dockets per 38 C.F.R. § 20.202(c)(2) has not elapsed. However, the record reflects a docket switch waiver letter, expressly permitting the Board to continue adjudicating these claims, so there is no prejudice to the Veteran in proceeding to adjudicate the issues on appeal on the merits. Williams v. McDonough, 37 Vet. App. 305 (2024).

This appeal has been advanced on the docket due to the Veteran's age pursuant to 38 U.S.C. § 7107(b); 38 C.F.R. §§ 20.800(c), 20.902(c).

TDIU and Effective Dates

Generally, the effective date of an award of compensation benefits will be the date

the claim was received, or the date entitlement arose, whichever is later. See 38

U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for an increased rating for disability compensation will be the date entitlement arose or the date of receipt of the claim, whichever is later, with the exception being that the date may be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

A claimant may file an intent to file a claim to preserve an earlier effective date. See 38 C.F.R.
The effective date for an increased rating for disability compensation will be the date entitlement arose or the date of receipt of the claim, whichever is later, with the exception being that the date may be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

A claimant may file an intent to file a claim to preserve an earlier effective date. See 38 C.F.R. § 3.155(b). Effective March 14, 2015, VA adopted a standardized system requiring claimants to utilize forms prescribed by the Secretary. See 79 Fed. Reg. 57, 660, 57, 698 (Sept. 25, 2014). In adopting this system, VA implemented the concept of an intent to file a claim for benefits, allowing a submission establishing a claimant's effective date of benefits to be received in one of three following formats: (1) a saved electronic application with sufficient information to identify the claimant and the general benefit (e.g., compensation, pension), (2) written intent on a prescribed intent to file a claim form, or (3) oral intent communicated to designated VA personnel and recorded in writing. 38 C.F.R. § 3.155(b)(1).

If VA receives a complete claim form within one year of receipt of a claimant's intent to file a claim, VA must consider the complete claim filed as of the date the intent to file was received. Id.

To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129 (1992). In this regard, VA may not pay a benefit before a claim is made. 38 U.S.C. § 5101; Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998).

A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2).

The Board acknowledges that a claim for a TDIU is part and parcel of an increased rating claim when a TDIU is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Because there are no increased rating claims addressed in the current Board decision, the freestanding TDIU claim is not part and parcel of any other issue adjudicated herein.

1. Entitlement to an earlier effective date of August 17, 2022, but no earlier, for a total disability rating based on individual unemployability (TDIU), is granted.

In an August 2015 rating decision, the Veteran was granted an increased rating to 70 percent for post-traumatic stress disorder (PTSD). As part of this increased rating claim, the AOJ considered and denied entitlement to a TDIU. The Veteran did not appeal this claim.

Following the filing of a freestanding claim for TDIU, a July 2024 rating decision granted TDIU to the Veteran effective December 5, 2023. An August 2024 rating decision found a clear and unmistakable error and corrected the effective date for TDIU back to March 2, 2023, the date the VA 21-526 EZ (Fully Developed Claim for Compensation) and VA 21-8940 (Application for TDIU) were received.

In December 2024, the Veteran's representative sought a higher-level review asserting that the Veteran filed an Intent to File (ITF) on April 12, 2022, which was followed by an August 17,
the filing of a freestanding claim for TDIU, a July 2024 rating decision granted TDIU to the Veteran effective December 5, 2023. An August 2024 rating decision found a clear and unmistakable error and corrected the effective date for TDIU back to March 2, 2023, the date the VA 21-526 EZ (Fully Developed Claim for Compensation) and VA 21-8940 (Application for TDIU) were received.

In December 2024, the Veteran's representative sought a higher-level review asserting that the Veteran filed an Intent to File (ITF) on April 12, 2022, which was followed by an August 17, 2022, VA Form 21-526 EZ. The representative asserts that, on February 10, 2023, she sent an email to VA to check on the status of the TDIU claim, stating in the email that "A review of the veteran's file in VBMS indicates that the upload was never associated with [his] file." The representative also asserts that she resubmitted the VA Form 21-526 EZ in March 2023.

The Board has extensively reviewed the record and finds that there is no evidence of any prior communication indicating an intent to file a claim for TDIU. The claims file has a gap of almost 7 years between an October 2015 Notification Letter and an April 2022 Power of Attorney and Request for and Consent to Release Claimant's Records (Privacy Act Request). VA fulfilled the April 2022 Privacy Act Request and sent a notification letter in May 2022. VA also sent a November 2022 summary of benefits.

The Board notes that the presumption of regularity applies to this case, and it is assumed that documents submitted by claimants are uploaded to the VA claims file. The presumption of regularity provides that, in the absence of clear evidence to the contrary, the Court will presume that public officers have properly discharged their official duties. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004).

However, there is a December 27, 2022, letter from the Veteran's representative to VA requesting a "status of the veteran's pending claim for individual unemployability which has been pending since August 17th, 2022. This indicates that a claim for TDIU was pending prior to the filing of the March 2, 2023, VA Form 21-426EZ for TDIU.

This letter does not establish evidence that an Intent to File was filed in April 2022. However, resolving all doubt in favor of the Veteran, this letter provides an earlier filing date of the TDIU claim, back to August 17, 2022, the date set forth by the Veteran's representative in her December 2022 letter. As noted above, a claim for TDIU is a claim for an increased rating, so the Board will review evidence during the one year "look-back period" preceding the date of submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). In this case, the look-back period is from August 17, 2022, back to August 17, 2021.

Based on the review of the record, the Board finds that the Veteran should be awarded TDIU from August 17, 2022, the date that his representative asserts that she filed the Veteran's stand-alone claim for TDIU. As noted above, there are no records in the claims file from 2015 until the filing of the April 2022 power of attorney and privacy act request. Prior to this date, there is no evidence of an outstanding claim for TDIU, an intent to file, nor a pending increased rating claim.

As mentioned above, applicable to TDIU claims, the effective date is the earliest date from which it is factually ascertainable during the one-year look-back period, that an increase in disability has occurred. 38 C.F.R. § 3.400 (o)(2). A review of the medical evidence of record shows no basis to apply an earlier date for TDIU prior to the August 17, 2022, claim for TDIU.

Accordingly, an earlier effective date of August 17, 2022, but no earlier, for the award of TDIU is granted.

2. Entitlement to Special Monthly Compensation (SMC) is denied.

VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet.
is factually ascertainable during the one-year look-back period, that an increase in disability has occurred. 38 C.F.R. § 3.400 (o)(2). A review of the medical evidence of record shows no basis to apply an earlier date for TDIU prior to the August 17, 2022, claim for TDIU.

Accordingly, an earlier effective date of August 17, 2022, but no earlier, for the award of TDIU is granted.

2. Entitlement to Special Monthly Compensation (SMC) is denied.

VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the Board must consider whether the Veteran is entitled to SMC.

Special monthly compensation (SMC) grants an additional level of compensation to eligible Veterans who have certain disabilities, combinations of certain disabilities, severities of disabilities, or when a certain threshold in the assigned disability percentages is met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350.

Based on the evidence in this case, the Board has considered the applicability of SMC at the housebound rate and SMC based on the regular need for aid and attendance. The records reflects that the Veteran has service connection for PTSD rated at 70 percent. This decision grants total disability based on unemployability (TDIU) effective from August 17, 2022.

SMC at the housebound 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 (statutory housebound); or (2) is permanently housebound by reason of service-connected disability or disabilities (housebound-in-fact). 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). One is permanently housebound when substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.351(d).

The United States Court of Appeals (Court) has held that 38 U.S.C. § 1114(s) for housebound benefits does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent, and that 38 C.F.R. § 3.350 (i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a single service-connected disability rated as total. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In other words, if the TDIU is predicated on a single service-connected disability rated less than 100 percent (as in this case), it may nevertheless serve as a single 100 percent disability rating for purposes of establishing entitlement under 38 U.S.C. § 1114 (s).

In this case, the Veteran's TDIU is based solely on his service-connected PTSD. However, the Veteran does not have service connection for any other disabilities. Accordingly, SMC based on statutory housebound does not apply. In addition, the record does not show that the Veteran is substantially confined to his dwelling and the immediate premises due to his service-connected disabilities. 38 C.F.R. § 3.351(d). Therefore, SMC based on housebound-in-fact does not apply.

SMC under 38 U.S.C. § 1114 (l) may be established where there is anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

"Bedridden" is defined as a condition which, through its essential character, actually requires that a claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed for the greater or lesser part of the day to promote convalescence will not suffice. 38 C.F.R. § 3.352(a).

Pursuant to 38 C.F.R. § 3.350
blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

Pursuant to 38 C.F.R. § 3.350(b)(3) and (4), the criteria for determining that a Veteran is "so helpless as to be in need of regular aid and attendance" are contained in 38 C.F.R. § 3.352(a). This regulation provides that the following will be considered in determining the need for regular aid and attendance:

a. inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable;

b. frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.);

c. inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness;

d. inability to attend to the wants of nature; or

e. incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. Id.

It is not required that all the disabling conditions enumerated in 38 CFR §3.352 (a) be found in order to establish eligibility for aid and attendance. Turco v. Brown, 9 Vet. App. 222 (1996). The need for aid and attendance must be regular, but it does not need to be constant. The need must be caused solely by service-connected disabilities.

Turning to the evidence in this case, March 2022 CAPRI records show that the Veteran lives alone but has a friend/caregiver who attends some medical appointments with him, helps him maintain his home and laundry, provides supervision while showering and provides transportation. The Veteran sought a stipend for his caregiver through the Program of Comprehensive Assistance for Family Caregivers (PCAFCVA) but was denied because the caregiver does not reside with the Veteran. The Veteran's social worker performed an assessment of the Veteran's physical functioning, Instrumental Activities of Daily Living (IADLs), and Activities of Daily Living (ADLs).

The Veteran reported that he does not need help bathing and uses bars to get in and out of the shower. He reported that he is very careful getting on and out of the tub. He does not need assistance dressing, grooming, eating, or toileting. He states that he takes time getting out of bed and stands up with care. He also stated that he uses a staff to assist with mobility. The Veteran reported needing assistance with shopping, food preparation, housekeeping and laundry.

Given the above, the Board finds that the Veteran's service-connected disabilities does not render the Veteran so helpless as to be in need of regular aid and attendance such as getting dressed, keeping himself ordinarily clean and presentable, adjusting any special prosthetic or orthopedic appliance, feeding himself, attending to the wants of nature, or performing other ADLs on a regular basis to protect himself from the hazards or dangers in his environment. As such, the persuasive evidence of record establishes that the Veteran is not in need of the aid and attendance of another. In addition, the record does not show that the Veteran is bedridden.

Accordingly, the Board finds that the Veteran is not entitled to the additional benefit of Special Monthly Compensation based on his service-connected disabilities.

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Newton

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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