BVA9502961 DOCKET NO. 93-08 312 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than September 28, 1992, for entitlement to special monthly pension on account of the need of regular aid and attendance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from November 1949 to June 1950 and from November 1952 to September 1955. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a November 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), granting a permanent and total VA disability rating for pension purposes and entitlement to an additional monthly amount based on the need for regular aid and attendance of another person. Previously, by rating decision in January 1983, the veteran had been determined to not be entitled to VA nonservice-connected disability pension. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an earlier effective date for the grant of special monthly pension is warranted, prior to September 28, 1992. It is asserted by the veteran that May 28, 1991 is the appropriate date for the award of special monthly pension. It is contended by the veteran that the residuals of a stroke in December 1990, also prevented him from caring for himself. He cites recent medical evidence to support his claim. His representative argues that April 2, 1991 is the proper effective date to be assigned his special monthly pension benefit. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all the evidence of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the evidence supports a claim for an earlier effective date of February 26, 1991, for the grant of special monthly pension on the basis of being in need of regular aid and attendance. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. The veteran has been rated permanently and totally disabled forVA disability pension purposes since November 1990. 3. On February 26, 1991, it became factually apparent that the veteran was so helpless from his disabilities as to be in need of regular aid and attendance of another person; prior to that date, the veteran was not shown to have been in need of regular aid and attendance, nor did he have a permanent disability rated at 100 percent. 4. The RO granted the veteran increased VA pension, based on the need for regular aid and attendance, effective September 28, 1992. CONCLUSION OF LAW The requirements for an earlier effective date of February 26, 1991, for the grant of special monthly pension on account of the need for regular aid and attendance of another person, have been met. 38 U.S.C.A. §§ 1502(b), 5107, 5110 (West 1991); 38 C.F.R. §§ 3.351, 3.352, 3.401 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board initially finds that the veteran has presented a well- grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is not inherently implausible. The undersigned also finds that all relevant evidence has been obtained by the RO, and there is no further duty to assist the veteran in developing the facts pertinent to his claim. Id. I. Background In November 1990, the veteran filed a claim for special monthly pension on the basis of a need for regular aid and attendance and/or housebound benefits. In a February 1991 rating determination, the RO found that entitlement to pension benefits or the need for special monthly pension was not shown. The veteran filed a notice of disagreement in March 1991, requesting a VA examination. A statement of the case was issued in April 1991. VA outpatient clinical treatment records indicate that the veteran was seen in February 1991, indicating that he felt fine except for his chronic hip pain. On February 26, 1991, it was reported that his hip pain had progressed until he was at that time wheelchair-bound. It was indicated that the veteran suffered severe pain with any range of motion. X-ray studies reportedly revealed severe bilateral joint obliteration, left greater than the right, and femoral head collapse with cystic changes. On April 2, 1991, the veteran underwent a VA general medical examination. At that time, the veteran stated he was status post a bilateral inguinal hernia operation and a cerebral vascular accident with left hemiplegia in December 1990. He indicated, however, that he was not hospitalized for the cerebral vascular accident and regained almost full range of motion in his upper extremity in approximately one month. Range of motion in the left lower extremity had been impaired previously by arthritis of the left hip and, correspondingly, his recovery from the cerebral accident was hard to evaluate. He described pain in his hips for 15 years. The pain had progressed to the point that for the last 7 to 8 years he had been unable to walk without assistance. He noted that he used either a walker or wheelchair to move within his home. He reported that he was almost in constant pain, however, he apparently never took medication for the condition. The veteran also stated that in 1958 he underwent a subtotal gastrectomy. On physical examination, there was a severe decreased range of motion in both hips with pain elicited on minimal attempts at passive range of motion. The veteran kept his thighs partly flexed over his abdomen to minimize pain. The examiner also noted a probable mild decrease of left hand grip strength. Mobility of the left lower extremity was difficult to evaluate due to severe arthritis of the left hip. X-ray studies of the veteran's hips in November 1990 revealed degenerative arthritis with a marked narrowing of both hip joints and a deformity of the left femoral head. A narrowing at the L4-5 disc space was also found. The final diagnoses were: (1) degenerative arthritis of both hips with probable avascular necrosis of both femoral heads, severely symptomatic; (2) status post subtotal gastrectomy, with no evidence of previous surgery based on upper gastrointestinal series; (3) status post cholecystectomy and appendectomy by history; (4) hypertension; (5) a history of right cerebral vascular accident with left hemiplegia and rapid clinical recovery; and (6) probable peripheral vascular disease manifested by left carotid pruritus and decreased pulses on lower extremities. In a May 1991 communication, the veteran stated that he was scheduled for right hip replacement in September 1991. In a May 1991 rating decision, the veteran was awarded entitlement to VA pension benefits from the date of his original claim in November 1990. The RO then found the veteran had a combined 60 percent rating; 20 percent for degenerative arthritis of both hips; a 20 percent evaluation for peripheral vascular disease of both lower extremities; a 20 percent evaluation for incomplete paralysis of the left upper extremity, status post cerebral vascular accident; a 10 percent evaluation for hypertension; a 10 percent evaluation for a history of right cerebral vascular accident; and several noncompensable evaluations. In September 1991, the veteran was admitted to a VA medical center for extraction of all of his teeth prior to his total hip replacement surgery. This procedure was performed in order to prevent possible complications in the future due to dental infections and surgery. At that time, it was indicated the veteran was awaiting bilateral total hip replacement surgery secondary to chronic degenerative joint disease. In September 1992, L. Morris indicated remaining with the veteran at night, as needed, when the veteran's nephew needed to work, because he needed 24-hour care due to an inability to feed himself or go to the bathroom alone. It was reported that the service mentioned above had been required since January 1, 1991. On an October 1992 VA examination for housebound status and need for regular aid and attendance benefits, the veteran gave a history of having bilateral hip pain for many years, with a recent left hip replacement on September 28, 1992. He also noted a pending right hip replacement. It was again stated that he underwent a gastrectomy some 45 years ago as a result of ulcers and that one-third of his stomach had been removed. On examination, it was noted that the veteran had many problems with his left side which the examiner concluded were definitely not related to a stroke. The examiner stated that the veteran was then currently wheelchair-bound. He had pain in his right hip when trying to extend his right knee passed 160 degrees. The examiner's impression was bilateral, probable, avascular necrosis of the femoral heads with recent replacement of the left hip. Hypertension with a history of left hemiparesis secondary to a cerebral vascular accident with paresis was also found. The examiner concluded that he was "at least housebound," that he was unable to use his right hand or, based on the statements of the veteran, able to stand, and was probably entitled to aid and attendance, as he could not get out of his house by himself. In a November 1992 rating decision, the RO granted the veteran entitlement to a special monthly pension based on the need for regular aid and attendance of another from September 28, 1992, the date of his left hip replacement. II. Analysis The effective date of increased pension, based on the need for aid and attendance or housebound status, will be the date of receipt of the claim or the date entitlement arose (i.e., the date on which the veteran factually met the eligibility requirements), whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.401(a). A person shall be considered to be in need of regular aid and attendance if such person is otherwise eligible and is: (1) A patient in a nursing home; or (2) helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1502(b). The following will be accorded consideration in determining the need for regular aid and attendance: An 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; an inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; an 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 incident to his or her daily environment. 38 C.F.R. § 3.352(a). The question before the Board is on what specific date, on or after the veteran's November 1990 claim, did he factually meet the requirements for aid and attendance or housebound benefits. It is unclear why the veteran in his December 1992 notice of disagreement contends that he should be granted special monthly pension benefits, effective from May 28, 1991. On the basis of a review of the veteran's claims folder, the undersigned is unable to assign any particular significance to this date. In a letter dated May 28, 1991 and received by the RO on May 30, 1991, the veteran reiterated his claim for VA aid and attendance or housebound benefits. By rating decision in May 1991, the RO denied the veteran's claim for special monthly pension and awarded entitlement to a VA disability pension from November 1990, the date the veteran filed his reopened claim for VA pension benefits. Neither the May 28, 1991 statement nor the May 1991 rating determination would have any bearing on when the veteran factually became in need of regular aid and attendance benefits. The veteran filed his claim for VA pension and special monthly pension (aid and attendance or housebound benefits) in November 1990. The May 1991 rating decision allowed only the veteran's claim for pension; thus, this was not a total allowance of the veteran's claim and the issue of special monthly pension was still before the RO. See AB v. Brown, 6 Vet.App. 35 (1993). Accordingly, a finding that the veteran should be awarded special monthly pension benefits on May 28, 1991, is not warranted. In view of the evidence of record, it is the determination of the undersigned that the February 26, 1991, VA outpatient clinical report, supported by the April 2, 1991, VA examination findings disclose evidence sufficient to demonstrate that the veteran was then so helpless as to require the regular aid and attendance of another person. The RO determined the veteran's need for regular aid and attendance began on September 28, 1992, the date he underwent left hip surgery. As of February 26, 1991, however, as the VA medical documentation makes apparent, he was encountering severe difficulties associated with his hips which ultimately lead to the necessary surgical intervention. Although the effective date of September 28, 1992, (date of surgery) assigned by the RO is certainly more unequivocally supported, there is sufficient evidence, for the reasons stated above, to assign February 26, 1991, as the effective date for increased pension. The veteran is given the benefit of the doubt on this point. 38 U.S.C.A. § 5107(b). The Board has considered all possible dates earlier than September 28, 1992, including November 1990, the date the veteran filled his claim for special monthly compensation for pension purposes, and January 1, 1991, the date L. Morris indicates the special caring for the veteran began. However, no date before February 26, 1991 is supported by sufficiently adequate medical evidence to establish a finding that the veteran was factually in need of regular aid and attendance or was housebound. The United States Court of Veterans Appeals (Court) has held that a lay party is not competent to provide probative evidence as to matters requiring knowledge or expertise derived from specialized medical education. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Accordingly, the lay opinion of L. Morris that the veteran was in need of regular aid and attendance benefits at a date earlier than September 28, 1992, is not itself competent or probative evidence to establish the correct date the veteran actually met the legal requirement of VA special monthly pension benefits. (CONTINUED ON NEXT PAGE) ORDER An earlier effective date of February 26, 1991, for special monthly pension based on the need of regular aid and attendance is granted. J.F. GOUGH 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.