BVA9504208 DOCKET NO. 93-04 841 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an earlier effective date for the award of additional aid and attendance under 38 U.S.C. § 314(r)(2). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD R. M. Yonemoto, Counsel INTRODUCTION The veteran had active service from January 1985 to July 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of March and September 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issue developed and certified for appeal was entitlement to additional allowance for a higher level of care under 38 U.S.C. § 314(r)(2) on the basis of clear and unmistakable error in a rating decision of August 21, 1986. This statutory provision is currently codified at 38 U.S.C.A. § 1114 (r)(2)(West 1991). Based on the decision below, the Board is of the opinion that the appropriate issue which should be addressed on appeal is as stated on the title page. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he required hospitalization in June 1986, and as such, was entitled to additional allowance under the provisions of 38 U.S.C. § 314(r)(2). It is maintained that his service-connected disabilities warranted a higher level of care to include hospital, nursing home or other residential institutional care. It is asserted that, because he was in a hospital in June 1986 due to his service-connected disabilities, he should have been entitled to an award for additional benefits under the provisions of 38 U.S.C. § 314(r)(2) dating back to July 1986. The veteran's representative has emphasized the certifications of two Veterans Administration physicians in 1986 attesting to the veteran's need of daily skilled personal health care. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), the Board has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on a review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence of record supports the grant of an effective date of July 4, 1986, for the award of additional aid and attendance under 38 U.S.C. § 314(r)(2). FINDINGS OF FACT 1. The original claim for additional allowance for higher level care under 38 U.S.C. § 314(r)(2) has been pending since July 1986. 2. In 1986, two VA physicians certified that the veteran required the daily personal health care services of a skilled provider without which he would require hospital, nursing home or other institutional care. 3. Since his separation from service, the veteran has been in need of higher level of care on a daily basis by a person who is licensed to provide such services. CONCLUSIONS OF LAW 1. The original claim for additional allowance for higher level care under 38 U.S.C. § 314(r)(2) has remained open since July 1986. 38 C.F.R. §§ 3.160(c), 20.1103 (1994). 2. An effective date of July 4, 1986, for additional allowance for a higher level care, the absence of which would have required hospitalization, nursing home care, or other residential institutional care, is established. 38 U.S.C. §§ 314(r)(2)(1988); 38 U.S.C.A. §§ 5107 (b), 5110 (b)(1)(West 1991); 38 C.F.R. §§ 3.350(h), 3.352(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claim for an earlier effective date of July 4, 1986, for additional aid and attendance under 38 U.S.C. § 314(r)(2) is well grounded and within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that his claim is plausible. The Board is also satisfied that all relevant facts have been properly developed to the extent possible, and there is no further "duty to assist" the veteran, which is also mandated by § 5107(a). FACTUAL BACKGROUND The veteran was medically discharged from service on July 3, 1986, because of cervical fracture with myelopathy and neurogenic bladder and bowel dysfunction, rated as 100 percent disabling. His application for VA compensation benefits was received on July 3, 1986. Also, there was an undated VA report of an examination for housebound status and permanent need for regular aid and attendance, showing that the veteran had weak triceps and wrist movement without finger movement, that there was no motor or sensory function in the lower extremities, and that the veteran wore a Halo vest to stabilize the C5-6 fracture dislocation. It was further noted that the fracture site was not stable, that the veteran had light headedness and/or fainting sensation when getting up from his wheel chair, and that the veteran was unable to walk or leave the immediate premise without the assistance of another person. The examining physician certified that the veteran required the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care. On VA report of an examination for housebound status and permanent need for regular aid and attendance, a physician certified that the veteran required the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care. The examination was performed on July 15, 1986. In late July 1986, the RO granted service connection for residuals of a cervical fracture with myelopathy and neurogenic bladder and bowel dysfunction, for which a 100 percent disability rating was assigned, effective from July 4, 1986, the day after his separation from service. In the following month, the veteran was informed of the grant of service connection and his monthly rate of compensation. Received for the record on August 20, 1986, was a copy of a VA discharge summary, showing the admission date of June 23, 1986, without the discharge date. The diagnoses were C-6 quadriplegia and neurogenic bowel and bladder. A rating action on August 21, 1986, assigned a 100 percent disability rating for loss of use of both feet, residuals of cervical fracture with loss of anal and bladder sphincter control; a 70 percent disability rating for incomplete paralysis of the right upper extremity; a 60 percent disability rating for incomplete paralysis of the left upper extremity; and a 20 percent disability rating for loss of erectile power. The combined rating in effect was 100 percent, effective from July 4, 1986. The August 1986 rating action also awarded entitlement to special monthly compensation under 38 U.S.C. § 314, subsection (k), and 38 C.F.R. § 3.350(a) on account of loss of use of the creative organ as well as entitlement to special monthly compensation under 38 U.S.C. § 314, subsection (o), and 38 C.F.R. § 3.350(e) on account of paraplegia with loss of use of both legs and loss of anal and bladder sphincter control. The veteran was further awarded additional aid and attendance allowance under 38 U.S.C. § 314, subsection (r)(1) and 38 C.F.R. § 3.350(h), subject to the provisions of 38 C.F.R. § 3.552(b)(2) on account of entitlement under subsection (o) and being in need of regular aid and attendance. The effective date for these awards was July 4, 1986. A VA discharge summary disclosing hospitalization from June 23, to September 15, 1986, shows that the veteran received baseline nursing care and was seen on a regular basis daily by the staff from Occupational Therapy and Physical Therapy Departments, that he also participated in recreational therapy, and that he was able to transfer with minimal-to-moderate assistance and to propel a manual wheel-chair without any problem. It was further noted that he was independent in upper extremity dressing and grooming, and that the veteran was projected to be practically independent in all activities of daily living. In October 1986, the veteran was informed of the monthly amount of his VA benefits. He was further told of a determination of awarding him special monthly compensation because of his need of regular aid and attendance of another person. An October 30, 1986, rehabilitation medicine service progress note shows the veteran received assistance for self care from his mother. In a rehabilitation medicine service progress note of January 8, 1987, it was reported that the veteran continued to use a hired aide to assist with morning self care. A VA Nursing Care Referral Form, dated in January 1987, shows a physician's recommendations for a home healthcare nurse to supervise in catheter care and a home healthcare aide for personal care and I & O catheter 5 times a week. The reporting hospital nurse noted that the family was caring for the veteran at home with the help of a paid aide who assisted in personal care. A VA rehabilitation medicine service clinical entry, dated January 17, 1987, relates that the veteran's mother was contracting with the Lexington Clinic for daily morning "I & O cath and a bowel program at their own expense." A VA progress note of January 22, 1987 reveals that the veteran's mother reportedly stated that his care was excessive and that "they need live-in caregiver." In a letter, dated January 16, 1992, a VA physician stated that the veteran required a skilled level of attendant on a daily basis because of disabilities resulting from a spinal cord injury, that supervision of skilled daily care was monitored by the Spinal Cord Injury Service on an as needed basis per telephone, clinic and home visits by designated staff, and that absence of supervised skill care would necessitate that the veteran become a patient of a nursing home or hospital. In a rating decision of March 1992, the RO awarded the veteran entitlement to additional allowance for higher level care under 38 U.S.C.A. 1114(r)(2), effective from January 16, 1992. ANALYSIS A veteran receiving the maximum rate under 38 U.S.C. § 314(o) who is in need of regular aid and attendance or a higher level of care may be entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. The amount of the additional allowance payable to a veteran in need of higher level of care is specified in 38 U.S.C. § 1114(r)(2). In determining whether the veteran is entitled to an award of additional allowance payable to a veteran in need of higher level of care under the provisions of 38 U.S.C. § 314(b)(2), the evidence must show that he needs a "higher level of care" than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care he would require hospitalization, nursing home care, or other residential institutional care. The veteran's need for a higher level of care than is required to establish entitlement to the regular aid and attendance is determined by a VA physician or, in areas where no VA physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such person. Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health- care training or the regular supervision of a trained health-care professional to perform. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial. 38 C.F.R. § 3.352(b). The veteran filed a claim for VA compensation within a year following his service separation. About that time, two physicians certified the veteran's need for higher level aid and attendance. Nevertheless, the rating decision of August 1986 did not address the issue of entitlement to additional allowance for a higher level of care under 38 U.S.C. § 314(r)(2). Furthermore, the veteran was not informed that that decision specifically denied him the additional allowance. Since the filing of the original claim, there has been no rating action denying that claim. A disallowed claim is not final unless the claimant has been properly notified. See 38 C.F.R. § 20.1103 (1994). As such, the Board concludes that the veteran's claim for additional allowance for a higher level of care has remained open since July 1986. It should be noted that since the August 1986 decision is not final as to the above-mentioned claim, there is no need to demonstrate that that decision is clearly and unmistakably erroneous. The original claim is still pending. 38 C.F.R. § 3.160(c). While the VA hospital summary of September 1986 seems to indicate some improvement of the veteran's condition, subsequent medical data continue to show the need for skilled daily care, i.e., indwelling catheter. In October 1986, it was reported that he received assistance for self care from his mother. Significantly, in January 1987, a private physician recommended that the veteran needed a home healthcare nurse to supervise catheter care and a home healthcare aide for personal care and indwelling catheter. A hospital nurse also noted that the family was caring for the veteran at home with the help of a paid aide who assisted in personal care. Moreover, a January 1987 VA progress note discloses that the veteran continued to use a hired aide to assist with self care. In fact, a VA physician reported, in essence, that the veteran required personal health-care services on a daily basis by a skilled level of attendant, and that without such care the veteran would have to be placed in a nursing home or hospital. Based on that certification, the RO in March 1992 granted entitlement to additional allowance for a higher level of care under 38 U.S.C.A. § 1114(r)(2). The Board is bound by the record and cannot substitute its judgment for the evidence. Fundamentally, the Board accepts the validity of the veteran's representative argument set out in his statement dated June 7, 1993. A claim may be denied only if the preponderance of the evidence is against the veteran. Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990) Here, after considering all evidence on file, the Board finds that since separation from service the veteran has been in need of higher level of care on a daily basis by a person licensed to provide such services. The Board, therefore, concludes that the earlier effective date of July 4, 1986, for the award of additional aid and attendance under 38 U.S.C. § 314(r)(2) is warranted. ORDER An earlier effective date of July 4, 1986, for additional allowance for higher level of care under 38 U.S.C. § 314(r)(2) is granted. JOHN E. ORMOND Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.