VA lawyer brief on the effective dates smc s and l

[Mr cue]

Well I guess it is some what good but I still got to see the judge to get them to address everything.

Ok they are say smc l basically back to 2014. They want to remand to address this.

But for the smc s housebound by fact.they are still playing games.

Now smc is a informal claim smh.

The VA was to maximize my claims back in 2001 and 2012.

They will not address the housebound by fact.

Howell v Nicholson issue.

Well I will talk with lawyer we will win that to all he has to show is the tdiu decision 2001 and the extra scheduler tdiu decision 2012.

Which granted tdiu from 1993-2001.

The VA has been aware that I have been confine to my home since 1993. And was permanent and total.

Smc s back to 1993. It's coming.lol I hope.

 
 

   
 
BRIEF OF APPELLEE SECRETARY OF VETERANS AFFAIRS 
__________________________________ 
I. ISSUES PRESENTED  
Whether the Court should affirm that portion of the November 23, 2021, decision of the Board of Veterans’ Appeals (Board) denying entitlement to an effective date prior to May 9, 2018, for the award of special monthly compensation (SMC) based on housebound criteria, and remand that portion of the Board decision denying entitlement to an effective date prior to June 11, 2018, for the award of SMC based on aid and attendance. 
II. STATEMENT OF THE CASE 
A. Jurisdictional Statement 
The Court has proper jurisdiction pursuant to 38 U.S.C. § 7252(a), which grants the United States Court of Appeals for Veterans Claims exclusive 
jurisdiction to review final decisions of the Board. 
B. Nature of the Case 
 
Appellant seeks an earlier effective date for SMC at the aid and attendance and housebound rates.  (Appellant’s Brief (App. Br.) at 9-15)).   Appellant argues that the Board provided inadequate reasons or bases as to its determinations regarding aid and attendance (App. Br. at 9-13) and SMC at the housebound rate (App. Br. at 9-10).  Yet, the Board adequately considered the evidence of record as to SMC at the housebound rate, and the Court should affirm this portion of the Board’s determination.   
However, the Board provided inadequate reasons or bases for its determination as to the proper effective date for SMC based on aid and attendance criteria, so the Court should vacate and remand this portion of the Board’s decision. 
C. Statement of Facts and Procedural History 
Appellant served in the Army from October 1993 to December 1993.  (R. at 5139).  In April 2012, the Board issued a decision awarding a total disability rating based on individual unemployability (TDIU) as of December 1993.  (R. at 273445).  In a May 2014 independent living assessment, an examiner described Appellant’s ability to perform the activities of daily life.  (R. at 2496-2502).  During a September 2014 VA Social Work Note, the social worker described Appellant’s 
  
need for assistance and noted that “a claim for A&A can be explored.” (R. at 2439 (2439-40)).  In an April 2015 independent living plan, the provider described goals to improve Appellant’s ability to perform the activities of daily living.  (R. at 232931).  The provider in a September 2015 VA vocational rehabilitation note described a vocation as not reasonably feasible to due, inter alia, the impairment to Appellant’s ability to perform the activities of daily living.  (R. at 2309 (2309-13)). 
Appellant filed a claim for SMC in May 2018.  (R. at 2164-67).  In a June 2018 VA examination report, the examiner described Appellant’s functional limitations, including an inability to “dress[] and [undress]” or do “dishes, housework, shoes, cooking, [or] putting away groceries.”  (R. at 1598 (15661600)).  A July 2018 private paraprofessional care plan described Appellant’s need for aid and attendance with the activities of daily living.  (R. at 1400).  The RO denied SMC at the aid and attendance and housebound rates in a July 2018 decision.  (R. at 1401-13).  In August 2018, Appellant filed a notice of disagreement with additional evidence and argument.  (R. at 1384-85 (1383-91)).  The RO continued the denial of SMC in an April 2019 Statement of the Case.  (R. at 126198).  Appellant filed a VA Form 9 later that month.  (R. at 1251 (1245-56)). 
In a January 2020 decision, the Board granted SMC at the housebound rate from May 9, 2018, but no earlier, and SMC at the aid and attendance rate from July 17, 2018, but no earlier.  (R. at 1039-49).  Appellant appealed this decision and, in January 2021, the Court issued a memorandum decision vacating the 
Board’s denial of earlier effective dates for SMC, finding that the Board erred in assigning effective dates for SMC in the first instance.  (R. at 928 (924-31)).  
Following this decision, Appellant’s claims were returned to the Board and the Board remanded Appellant’s claim in May 2021, instructing the RO to “assign effective dates for SMC housebound and SMC based on the need for aid and attendance in the first instance.”  (R. at 869 (865-70)).  The RO did so later that month and found that SMC at the housebound rate was warranted as of May 9, 
2018, and SMC at the aid and attendance rate was warranted as of July 17, 2018.  (R. at 702-10).  Appellant filed a Form 10182 in July 2021, requesting direct review by the Board.  (R. at 646). 
In the November 2021 decision on appeal, the Board denied an effective date prior to May 9, 2018, for SMC based on housebound criteria, and granted an effective date of June 11, 2018, but no earlier, for SMC based on aid and attendance.  (R. at 3 (1-10)).  The Board found that Appellant was not eligible for 
SMC at the housebound rate until the May 2018 claim, per the relevant statute.  (R. at 3, 8-9).  The Board found that there was no evidence of record of Appellant’s need for aid and attendance prior to June 2018.  (R. at 9-10). 
III. SUMMARY OF THE ARGUMENT 
The Board reasonably concluded, based on the evidence of record, that an earlier effective date was not warranted for SMC at the housebound rate.  However, the Board provided inadequate reasons or bases for denying an earlier effective date for SMC at the aid and attendance rate.  Therefore, the Court should affirm that portion of the Board’s decision as to SMC at the housebound rate, and vacate and remand that portion of the Board’s decision as to SMC at the aid and attendance rate. 
IV. ARGUMENT 
Appellant seeks an earlier effective date for SMC at the aid and attendance and housebound rates.  (App. Br. at 9-15).  Special monthly compensation at the aid and attendance rate listed in 38 U.S.C. § 1114(l) is payable when a Veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person.  38 C.F.R. § 3.351(b); see 38 U.S.C. § 1502(b).  A claimant will be considered in need of regular aid and attendance if he or she: 
(1)    Is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or 
(2)    Is a patient in a nursing home because of mental or physical incapacity; or 
(3)    Establishes a factual need for aid an attendance under the criteria set forth in § 3.352(a). 
 
38 C.F.R. § 3.351(c).   
In determining the need for regular aid and attendance, VA considers: inability to dress or undress or keep ordinarily clean and presentable, frequent need to adjust any prosthetic, inability to feed one’s self, inability to attend to the wants of nature, or physical or mental incapacity which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.  38 C.F.R. § 3.352(a).  Special monthly compensation at the housebound rate listed in 38 U.S.C. § 1114(s) is payable when a Veteran is 
“permanently housebound” such that “the veteran is substantially confined to such veteran’s house … or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime.”  A determination as to whether a veteran is entitled to SMC is a finding of fact subject to review under the clearly erroneous standard.  See Turco v. Brown, 9 Vet.App. 222, 224 (1996). 
A. The Board Provided Inadequate Reasons or Bases As to Aid and Attendance and Remand Is Warranted 
 
Appellant argues that the Board provided inadequate reasons or bases as to the effective date for SMC at the aid and attendance rate.  (App. Br. at 9-13).  
Appellant argues that there are records from prior to the prior to the current June 
2018 effective date that suggest that Appellant required aid and attendance.  (App. 
Br. at 12-13); see (R. at 2309 (September 2015 Special Administrative Review), 
2329-31 (April 2015 Rehabilitation Plan), 2439 (September 2014 Social Work Note), 2496-2502 (May 2014 Preliminary Independent Living Assessment)).  Yet the Board failed to address this evidence in considering whether SMC at the aid and attendance rate was warranted as of the May 2018 date of claim, rather than the June 2018 date that is his current effective date.  (App. Br. at 13).  As Appellant argues, the Board did not address the adequacy of the June 2018 VA examination report, and the fact that this report did not state when Appellant’s limitations began.  (App. Br. at 9-11); (R. at 1598-1600).  Therefore, consistent with Appellant’s arguments, the Court should remand this part of the Board’s decision for an adequate statement of reasons or bases.  The Secretary concedes that the Board should address this evidence and whether it warrants an earlier effective date for SMC at the aid and attendance rate. 
However, to the extent that Appellant argues that the Board should have considered whether any of the above-described medical records constituted an informal claim for SMC or an informal claim for an increased rating to include SMC, his argument is without merit.  (App. Br. at 11); see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991).  Some of Appellant’s evidence that he argues might have been an informal claim was from after March 24, 2015, the last date when VA accepted informal claims for benefits.  (R. at 2309, 2329-31); see Bailey v. Wilkie, 33 Vet.App. 188, 198 (2021) (“Prior to March 24, 2015, the effective date of these amendments, VA accepted both formal and informal claims for benefits”).  And he fails to explain how the remaining evidence consists of medical records that were submitted as part of a claim for benefits, or otherwise satisfied the criteria as an informal claim.  See Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) (“The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for benefits.”).  Similarly, 
he argues that “SMC may be considered part of a claim for increased 
compensation,” but fails to fails to carry of burden of identifying the claims that SMC would attach to or explaining how any further consideration of Akles v. Derwinski, 1 Vet.App. 118 (1991), would be determinative in this case.  See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error); see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments).  Therefore, although remand is warranted in this case, the Court should only remand this case for the reasons conceded by the Secretary.  See Mayfield v. Nicholson, 19 Vet.App. 103, 129 (2005) (where judicial review is not hindered by deficiency of reasons or bases, a remand for reasons or bases error would be of no benefit to the appellant and would therefore serve no useful purpose). 
B. The Board Provided Adequate Reasons or Bases As to SMC 
Housebound and the Court Should Affirm This Part of the Decision 
 
Next, Appellant argues that the Board provided inadequate reasons or bases as to SMC at the housebound rate.  (App. Br. at 13-15).  However, the Board provided adequate reasons or bases, and the Court should affirm this part of the decision. 
Appellant’s effective date for SMC at the housebound rate is the same as his date of claim: May 2018.  (R. at 3).  The record reflects that, in May 2018, Appellant filed a claim seeking SMC along with service connection for a mood disorder and depression.  (R. at 2165).  In this regard, the Board found that “the record indicates his eligibility for statutory housebound status arose due to service connection for adjustment disorder being granted from May 9, 2018” and “as of 
May 9, 2018, the Veteran had one disability rated as totally disabling.”  (R. at 8).  Thus, as the Board found, the facts in this case do not support an effective date prior to the May 2018 date of claim.  (R. at 9); see 38 C.F.R. § 3.401(a)(1).  So while Appellant argues that the Board provided inadequate reasons or bases for denying SMC at the housebound rate because it did not define the relevant term of “substantially confined” (App. Br. at 13-15), such an error (which the Secretary does not concede) would be at worst harmless error, as Appellant cannot receive an effective date earlier than May 9, 2018, for SMC at the housebound rate.  See Lamb v. Peake, 22 Vet.App. 227, 235 (2008) (holding that there is no prejudicial error when a remand for a decision on the merits would serve no useful purpose).  Crucially, Appellant solely focuses this part of his brief on the Board’s lack of definitions and fails to explain how any such definition could result in an earlier effective date.  Hilkert, 12 Vet.App. at 151.  Thus, Appellant’s argument lacks legal and factual merit and should be rejected by the Court.    
The Court should therefore affirm that portion of the Board’s decision in which the Board denied an earlier effective date for SMC at the housebound rate. 
V. CONCLUSION 
WHEREFORE, in light of the foregoing, the Court should affirm the portion of the November 23, 2021, Board decision that denied an earlier effective date for SMC at the housebound rate, and remand the portion of the Board decision that denied an earlier effective date for SMC at the aid and attendance rate. 
Respectfully submitted,  
 
 
 
Attorneys for the Secretary  
 

[Mr cue]

Well after sleeping on this I am a little mad at myself for not just handling my case.

I hate that I have to ask someone to address something in my case.

The VA is really trying to send my lawyer down a rabbit hole.

Since when does smc get call a informal claim.

It call a inferred claim. Smh.

Do you see were they are try to say the VA stop informal claim in 2015.

My issues is I was granted tdiu 2001 and extra scheduler tdiu 1993-2001.

But the VA refused to infer or maximize my claims back than.

The VA has been aware I have been Housebound by fact since 1993 and permanent and total.

But smc was never inferred.

Now they are try to turn it into informal claims.

I am get really getting mad at all this bullshit just address my issues.

Over 5 year and I can't get a decision that address this.

If this lawyer refuse to address this in the reply brief I might have to do this myself.

I refuse to lose my case over this.

I will lose if this is treated ask informal claims.

This is crazy I believe this is really been done in purpose but the VA to not have to granted my retro.