Case A26040831

MARTIN B. PETERS · 2026 · Case ID: A26040831

MIXED

Summary

The veteran, who served from September 1990 to September 1992, appeals the denial of an earlier effective date for Special Monthly Compensation (SMC) based on the need for regular aid and attendance, and the denial of a higher level of SMC. The Board granted an earlier effective date of April 5, 2022, for SMC based on aid and attendance, resolving reasonable doubt in the veteran's favor. This decision was based on evidence showing the veteran required assistance with daily living due to service-connected PTSD causing memory impairment and medication management issues, and lumbar spinal stenosis with radiculopathy leading to falls. The Board found that from April 5, 2022, to May 28, 2024, the veteran needed regular aid and attendance, citing his sister's assistance with medication, meal preparation, shopping, and his own reports of forgetting medications. The Board remanded the issue of entitlement to a higher level of SMC (SMC(r)(2)) for further development. This includes obtaining outstanding private treatment records from Meds4Vets and scheduling a new VA examination. The examination must address whether the veteran's complications from bariatric surgery are residuals of service-connected disabilities and whether his service-connected conditions necessitate daily care by a licensed professional or supervised caregiver, potentially requiring hospitalization or nursing home care.

Rationale

Veteran's PTSD caused memory impairment and need for medication management.; Lumbar spinal stenosis with radiculopathy caused pain and unsteady gait leading to falls.; Sister provided assistance with medication management, check-ins, meal prep, and shopping.; Veteran reported forgetting medications.; Benefit of the doubt resolved in veteran's favor.

Special Benefit

SMC - AID & ATTENDANCE; EARLIER EFFECTIVE DATE

Docket No.

250205-514409

Full Decision Text

Citation Nr: A26040831
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250205-514409
DATE: April 30, 2026

ORDER

An earlier effective date of April 5, 2022, no earlier, for special monthly compensation (SMC) based on need of regular aid and attendance under 38 U.S.C. § 1114(l) is granted.

REMANDED

Entitlement to a higher level of SMC based on the need for a higher level of special aid and attendance is remanded.

FINDING OF FACT

The Veteran's claim for SMC based on the need for aid and assistance was part and parcel of an increased rating claim for PTSD, which dated back to April 5, 2022, and resolving reasonable doubt in favor of the Veteran, entitlement arose as of April 5, 2022.

CONCLUSION OF LAW

The criteria for an earlier effective date of April 5, 2022, no earlier, for the award of SMC based on the need for regular aid and attendance are met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.1, 3.102, 3.160, 3.350(b), 3.352(a), 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1990 to September 1992.

This case comes before the Board of Veterans' Appeals (Board) from February 2025 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), hereinafter the Agency of Original Jurisdiction (AOJ), that resulted from a higher level review of an October 2024 rating decision, which denied an earlier effective date and a higher SMC evaluation based on aid and attendance. In February 2025, the Veteran submitted a timely Board Appeal: Notice of Disagreement (NOD), VA Form 10182, identifying the issues decided in that decision and electing the direct review docket. Thus, the Board may only consider the evidence of record at the time of notification of the October 2024 decision (i.e., October 4, 2024), which was subsequently subject to a higher level review. 38 C.F.R. § 20.301. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300.

In February 2026, the Veteran filed two Priority Processing Requests. The first form stated he was a risk for homelessness and would lose his home in the next 30 days. The second form stated he was not at risk of homelessness, he was experiencing extreme financial hardship and was very seriously ill.

Appeals must be considered in docket number order but may be advanced if sufficient cause is shown. 38 U.S.C. § 7107(a); 38 C.F.R. § 20.800(c). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. Any motion for advancement should be supported by pertinent documentation.

The Veteran is not of advanced age. Documentation was not submitted supporting risk for homelessness or severe financial hardship. There is insufficient evidence showing the Veteran currently has an illness so serious or grave in nature that advancement is warranted. As such, the motion for AOD is denied and the appeal will remain in its current docket number order.

As a final initial matter, in a January 2025 statement, the Veteran stated he was "filing a clear and unmistakable error claim for claim dated August 6, 2012 PTSD to include SMC." A claim for benefits based on CUE in a prior final rating decision entails special pleading-and-proof requirements to overcome the finality (res judicata) of the decision by collateral attack because the decision was not appealed during the appeal period. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). If the Veteran would like to challenge a final decision, he or his representative should submit a CUE motion that meets the specific pleading requirements.

For AMA appeals, 38 C.F.R. § 3.2500(h) controls the assignment of effective dates. Under that provision, the effective date will be the date VA received a veteran's initial claim or the date entitlement arose, whichever is later, if a veteran continuously pursues an issue by timely filing in succession any of the available review options as specified in § 3.2500(c) within one year of the issuance of the decision. 38 C.F.R. § 3.2500 (h)(1). With supplemental claims received more than one year after notice of a decision, the effective date will be fixed in accordance with the date of entitlement arose, but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2). The United States Court of Appeals for Veterans Claims (Court) recently held that a Supplemental Claim can be filed on claims forms other than the VA Form 20-0995. See Chisholm v. Collins, 38 Vet. App. 140 (2025).

With respect to the effective dates of awards of SMC, claims for SMC are by definition a type of increased (i.e., "special") compensation. SMC is available when, as the result of a service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by the rating schedule. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011). A veteran is presumed to be seeking the maximum benefit allowed by law or regulation; therefore, an appeal for a higher rating may include the inferred issue of entitlement to SMC even where the Veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118 (1991). Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings.

Looking to the procedural history of the instant appeal, a September 2024 rating decision granted entitlement SMC based on aid and attendance from May 28, 2024, the date VA received an Intent to File form prior to a June 18, 2024 Supplemental Claim for SMC based on aid and attendance.

Looking to the year prior to the June 18, 2024 Supplemental Claim, a May 2024 rating decision granted an increased evaluation to 100 percent for PTSD, in response to a February 2, 2024 Fully Developed Claim (FDC) for an increased evaluation for PTSD. Looking to the year prior to the February 2, 2024 claim, a June 2023 rating decision denied an increased evaluation for PTSD, in response to an August 28, 2022 Supplemental Claim for an increased evaluation for PTSD. Looking to the year prior to the August 28, 2022 Supplemental Claim, a July 2022 rating decision denied an increased evaluation for PTSD, in response to an April 5, 2022 FDC for an increased evaluation for PTSD. There is no claim in the one year prior to April 5, 2022 FDC for an increased evaluation for PTSD.

Therefore, the Board finds the Veteran could procedurally be entitled to SMC for the need of regular aid and assistance of another person as part and parcel of his increased evaluation claim for PTSD dating back to April 5, 2022, if entitlement arose during that time.

The term "date entitlement arose" is not expressly defined. However, it has been interpreted as the date when the claimant met the requirements for the benefit sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000).

SMC is payable at the (l) rate if a veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and assistance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and assistance: inability of claimant to dress or undress himself, or to keep himself 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 claimant to feed himself 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 hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a).

At least one of the above disabling factors needs to be met to receive SMC based on required A&A. See Turco v. Brown, 9 Vet. App. 222, 224 (1996); see also 38 C.F.R. § 3.352(a). The particular personal functions that the veteran is unable to perform should be considered in connection with his condition as a whole. 38 C.F.R. § 3.352(a). It is only necessary that the evidence establish the veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. The performance of the necessary aid and attendance service by a relative or other member of the veteran's household will not prevent a favorable determination. 38 C.F.R. § 3.352(c).

An October 2024 rating decision granted SMC based on the need for aid and attendance due to evidence showing the Veteran required the assistance of another person to perform activities of daily living due to his service-connected PTSD causing memory impairment and need for medication management and his lumbar spinal stenosis with radiculopathy causing pain and unsteady gait which led to numerous falls.

Resolving reasonable doubt in favor of the Veteran, from April 5, 2022 to May 28, 2024, the Veteran's service-connected disabilities rendered him in need of regular aid and attendance of another person. From April 5, 2022 to May 28, 2024, the evidence shows the Veteran's sister hired someone to assist him with medication management, check on him, meal prep, and shop. The Veteran reported times he could not remember if he took his medications. The evidence shows his service-connected lower extremity disabilities caused difficulty walking or standing for extended periods of time. In February 2024, he moved in with his sister. See June 2022 VA PTSD examination, June 2022 foot examination, June 2022 ankle examination, August 2022 PTSD DBQ, September 2022 clinician letter, October 2022 VA back examination, October 2022 Aid and Attendance or Housebound Examination, October 2022 sister statement, December 2022 clinician letter, May 2023 VA examination, and February 2024 VA PTSD examination.

Accordingly, the Board finds entitlement to an earlier effective date of April 5, 2022 for the award of SMC based on the need of regular aid and attendance of another person. See 38 C.F.R. § 3.352. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

The Veteran and his sisters contend the Veteran is entitled to a higher level of SMC for aid and attendance, specifically SMC(r). See July 2024 statements. Specifically, the Veteran contends entitlement to a higher level of SMC that would provide him licensed medical care, which his doctors agree he should have. The Veteran's sister contends her brother has severe medical conditions that require a caregiver or nurse care on a daily basis. She stated the evidence supports the need for constant care by a caregiver or training medical staff at all times. She expressed they fear the risk of suicide. The Veteran's other sister contends her brother's PTSD has gotten worse, to include needing to be watched due to risk of suicide. She stated she looks after her brother when their sister has other obligations. She requests the higher SMC evaluation for a
SMC for aid and attendance, specifically SMC(r). See July 2024 statements. Specifically, the Veteran contends entitlement to a higher level of SMC that would provide him licensed medical care, which his doctors agree he should have. The Veteran's sister contends her brother has severe medical conditions that require a caregiver or nurse care on a daily basis. She stated the evidence supports the need for constant care by a caregiver or training medical staff at all times. She expressed they fear the risk of suicide. The Veteran's other sister contends her brother's PTSD has gotten worse, to include needing to be watched due to risk of suicide. She stated she looks after her brother when their sister has other obligations. She requests the higher SMC evaluation for a nurse.

SMC(r)(2) is warranted when the evidence shows that the Veteran needs not only aid and attendance, but a higher level of care (daily care by a licensed professional or someone under the supervision of a licensed professional such that, in the absence of such care, the Veteran would be an inpatient or resident at a hospital or nursing home). The existence of the need for such care shall be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician. 38 U.S.C. § 1114(r).

The issue of entitlement to a higher level of SMC based on the need for a higher level of special aid and attendance is remanded to correct duty to assist errors that occurred prior to the decision on appeal.

First, prior to the decision on appeal, the Veteran submitted numerous treatment letters from Meds4Vets, which indicate he received treatment from the clinic for his numerous medical conditions since September 2021, to include psychotherapy. However, there are no corresponding treatment records from this clinic and it does not appear VA has attempted to obtain these records. As the Veteran has identified relevant outstanding private treatment records, a remand is required to allow VA to obtain authorization and request these records.

Additionally, VA provided an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance in October 2022. The Veteran provided Examination for Housebound Status or Permanent Need for Regular Aid and Attendance forms from a VA medical provider completed in June 2024 and a private treatment provider completed in July 2024.

The Examination for Housebound Status or Permanent Need for Regular Aid and Attendance forms submitted by the Veteran appear to be largely based on complications status post bariatric surgery. The June 2024 form noted status post bariatric surgery causing severe weight loss, weakness, chronic nausea, vomiting, falls, and orthostatic syncope. The July 2024 form referenced complications post bariatric surgery, including malnutrition, and orthostatic hypotension, stating the patient has lost many pounds rapidly due to complications with bariatric surgery and is unable to eat properly, looks weak, and has low mood. The Board cannot decide this claim without an examination that clearly limits consideration to the effects of the Veteran's service-connected disabilities, to include a medical opinion addressing whether the Veteran's complications status post bariatric surgery are residuals of his service-connected disabilities.

Additionally, the AOJ has not obtained an opinion as to whether the Veteran's service-connected disabilities require daily care by a licensed professional or someone under the supervision of a licensed professional such that, in the absence of such care, the Veteran would be an inpatient or resident at a hospital or nursing home. As the statute requires the need for higher-level care to be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician, the AOJ must obtain a medical opinion to determine whether the Veteran requires higher-level care.

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for Meds4Vets from September 2021 to the present. Make two requests for the authorized records unless it is clear a second request would be futile.

2. Schedule the Veteran for an aid and attendance examination by an appropriate clinician. The claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail.

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.

The examiner must address whether the Veteran's complications status post bariatric surgery are residuals of his service-connected disabilities.

The examiner must address whether the Veteran's service-connected disabilities require a higher level of care described by 38 U.S.C. § 1114(r)(2) (daily care by a licensed
.

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.

The examiner must address whether the Veteran's complications status post bariatric surgery are residuals of his service-connected disabilities.

The examiner must address whether the Veteran's service-connected disabilities require a higher level of care described by 38 U.S.C. § 1114(r)(2) (daily care by a licensed professional or someone under the supervision of a licensed professional). If the examiner determines that the Veteran requires such care, the examiner must address whether, in the absence of such higher care, he will require hospitalization, nursing home care, or other residential institutional care.

A complete and detailed rationale must be provided for all opinions expressed.

MARTIN B. PETERS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board T. Winkler

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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