Citation Nr: 18132246
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-05 138
DATE:	September 6, 2018
ORDER
Entitlement to an effective date prior to February 4, 2013, for special monthly compensation based on the need for aid and attendance is denied.
FINDING OF FACT
On February 4, 2013, the Veteran submitted a claim for entitlement to aid and attendance benefits; entitlement to the benefit did not arise before that date.
CONCLUSION OF LAW
The criteria for an effective date earlier than February 4, 2013, for the award of special monthly compensation based on the need for the regular aid and attendance of another person have not been met.  38 U.S.C. 1114 (l), 1155, 5110; 38 C.F.R. 3.400, 3.401, 3.350.
REASONS AND BASES FOR FINDING AND CONCLUSION
1. Entitlement to an effective date prior to February 4, 2013, for special monthly compensation based on the need for aid and attendance
A December 2013 decision established entitlement to special monthly compensation under subsection (l) based on the need for aid and attendance due to service-connected disabilities.  38 U.S.C. 1114(l).  The effective date of this award was February 4, 2013.  The Veteran claims that he is entitled to an earlier effective date for special monthly compensation based on the need for aid and attendance.
Special monthly compensation provided by 38 U.S.C. 1114(l) is payable where a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or so helpless that he is in need of the regular aid and attendance of another person.  38 C.F.R. 3.350(b). 
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 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 the 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 the hazards or dangers inherent in his daily environment.  Bedridden is that condition that requires the veteran to remain in bed, and the fact that the veteran 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).  
It is not required that all of the enumerated factors in 38 C.F.R. 3.352(a) be found to exist to establish eligibility for aid and attendance; such eligibility requires at least one of the enumerated factors be present. The particular personal function that a veteran is unable to perform should be considered in connection with his condition as a whole, and it is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need.  38 C.F.R. 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996).
The Veteran’s treatment records indicate that his ex-spouses, sister, and daughter are his caregivers.  
In a May 2002 private psychological evaluation, the examiner noted that the Veteran was able to drive, but his spouse did most of the driving lately.  The veteran appeared very anxious throughout the interview.  The Veteran reported that he lived alone in a house that he owned.  The Veteran was able to bathe and dress himself without assistance.  The Veteran was able to cook for himself, but his wife brought him most of his meals.  The Veteran would do a little housework.  The examiner felt that the Veteran would have difficulty maintaining concentration, but he was able to remember and follow simple instructions.  The examiner felt that the Veteran may need help in managing his funds.
On VA examination in June 2001, the Veteran reported that he averaged six hours of sleep per night.  His appetite was poor, and he had to force himself to eat to maintain proper nutrition.  His concentration was problematic.  The examiner felt that the Veteran was able to manage his own funds.
On VA examination in February 2003, the examiner stated that the Veteran was plagued by numerous obsessions and compulsions.  Simple chores were cumbersome.  For example, the Veteran had to wash his toothbrush in a particular way.  The examiner found that the Veteran’s ability to maintain minimal personal hygiene was adequate.  Obsessive and ritualistic behaviors interfered with the Veteran’s routine activities.  He had daily panic attacks.  The examiner stated that the Veteran’s capacity to manage his financial affairs was adequate.
In a June 2005 statement, the Veteran’s spouse stated that she made sure that the Veteran took his medication regularly.  She also told him when they had to go to doctor’s appointments.
On VA examination in March 2006, the Veteran described his daily activities in vague and ambiguous terms.  He stated that his household chores and rituals consumed most of his day.  The examiner found it noteworthy that the Veteran had not been hospitalized in the course of the past several years for psychiatric symptoms.  The examiner found no impairment of thought process and found that the Veteran was competent and able to manage his affairs.  The examiner concluded that the impact of the Veteran’s psychiatric problems on his social and occupational functioning was moderate.
On VA examination in March 2010, the examiner noted that the Veteran was powerfully built, evidencing continuous physical workouts.  The Veteran reported that everything was currently a struggle.  Impairment of communication was not found.  The Veteran showed positive hygiene.  He displayed obsessive and ritualistic behavior.  The Veteran stated that he had rental properties, and he was capable of handling the financial matters related to those properties.  The examiner found the Veteran to be competent and capable of handling finances in his own best interest.  The examiner also felt that the Veteran’s obsessive-compulsive disorder was chronic and severe.
On VA examination in October 2011, the examiner felt that the Veteran had serious psychological symptoms.  The examiner stated that the Veteran had an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.  The Veteran experienced anxiety and depression daily.  He had many daily rituals.  The examiner stated that while the Veteran could go through memory problems with his obsessive-compulsive disorder, on good days, his memory was alright.  Occasionally the Veteran’s hygiene was forgotten due to his obsessive-compulsive disorder.  The Veteran was deemed to be competent with his financial affairs, although his daughter was currently paying his bills.
In a January 2012 letter, the Veteran’s sister stated that the Veteran’s daughter lived approximately two miles away from the Veteran and was concerned about his well-being.  The Veteran’s daughter “make[s] an effort to try and check on him.”  She stated that the Veteran would yell for his daughter to leave his house.  The sister stated that she was presently visiting the Veteran from her home in another state, and she noted that all of the Veteran’s medications were beside his bedside.  She stated that the Veteran’s eating habits had diminished, and the Veteran seemed to be confined to his bed.
In November 2013, the Veteran’s sister stated that from April 2002 through April 2003, the Veteran was homebound, and she served full-time as the Veteran’s aid and attendant.  From April 2003 to February 2011, she stated that the Veteran was homebound, and she served about 70 percent of the time as the Veteran’s aid and attendant.  She concluded by saying that from February 2012 through the present, the Veteran was homebound, and she provided full-time aid and attendance.
In a January 2016 statement, the Veteran’s sister remarked that the Veteran became physically and severely mentally impaired from 2002 through the present.  She stated that the Veteran’s condition had worsened year by year.  She has stated that she took the Veteran to his medical appointments.  She stated that the Veteran’s rituals and obsessions had been going on for many years.  She stated that from 2002 through the present she had been providing meals, walking the Veteran to his bath, clothing the Veteran, and taking him to his medical appointments.  The Veteran’s daughter stated that she also cooked for the Veteran, bathed him, and tried to get him to leave his bedroom.  
The Veteran submitted a claim for special monthly compensation that was received by VA on February 4, 2013. 
Based on the above, the Board finds that an effective date prior to February 4, 2013 for special monthly compensation under 38 U.S.C. 1114(l) based on the need of regular aid and attendance is not warranted as the entitlement to the increased benefits did not arise prior to the date of the Veteran’s claim.  Although the Veteran’s sister indicated that she took care of the Veteran either full-time or 70 percent of the time from 2002 through the present, she also indicated in a January 2012 letter that she was visiting the Veteran at that time, as she lived in a separate state.  Additionally, the Board notes that while the Veteran’s daughter stated that she cooked for the Veteran and bathed him, the Veteran’s sister stated in the January 2012 letter that the Veteran’s daughter “make[s] an effort to try and check on him,” suggesting that the Veteran’s daughter’s services were not regular.  Due to those apparent discrepancies, the Board finds the statements from the Veteran’s sister and daughter to be of less probative weight.
The evidence does not show that the Veteran needed regular aid and attendance prior to February 4, 2013.  The Veteran was noted to have a driver’s license and was able to drive.  Although the Veteran’s ex-spouse assisted the Veteran with his medications while they were married in 2005, evidence shows that he had his medications organized and by his bedside after their separation.  Significantly, none of the VA or private examiners of record found that the Veteran was unable to handle his financial affairs.  Although the October 2011 VA examiner found that the Veteran had an intermittent inability to perform activities of daily living, the examiner did not find that the Veteran required nursing home care.
In sum, the most persuasive evidence of record weighs against the claim for entitlement to an effective date prior to February 4, 2013, for special monthly compensation based on the need for aid and attendance.  The preponderance of the evidence is against the claim for an earlier effective date.  Accordingly, the Board finds that the claim for entitlement to an effective date prior to February 4, 2013, for special monthly compensation based on the need for aid and attendance must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 
Harvey P. Roberts
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Layton, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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