Citation Nr: 0812105	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  06-06 930A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to special monthly compensation based on the need 
for regular aid and attendance.  


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

C. Kedem, Counsel




INTRODUCTION

The veteran had active service from September 1942 to 
February 1947.  

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from a September 2005 rating decision of 
the Waco, Texas, Regional Office (RO) which, in pertinent 
part, denied special monthly compensation based on the need 
for regular aid and attendance.  


FINDING OF FACT

The veteran is in receipt of special monthly compensation at 
the rate payable under 38 U.S.C.A. § 1114(m) (West 2002 & 
Supp. 2007), the criteria for which encompasses blindness 
rendering him so significantly disabled as to be in need of 
regular aid and attendance.  


CONCLUSION OF LAW

The veteran has failed to advance an allegation of fact or 
law upon which relief may be granted.  38 U.S.C.A. 
§ 7105(d)(5) (West 2002).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United 
States Court of Appeals for Veterans Claims (Court) held, in 
part, that a Veterans Claims Assistance Act of 2000 (VCAA) 
notice, as required by 38 U.S.C.A. § 5103(a), must be 
provided to a claimant before the initial unfavorable RO 
decision on a claim for Department of Veterans Affairs (VA) 
benefits.  In reviewing the veteran's claim, the Board 
observes that the RO issued a VCAA notice to the veteran in 
April 2005 which informed the veteran of the evidence 
generally needed to support a claim for special monthly 
compensation based on the need for regular aid and 
attendance; what actions he needed to undertake; and how the 
VA would assist him in developing his claim.  Such notice 
effectively informed him of the need to submit any relevant 
evidence in his possession.  

The VA has attempted to secure all relevant documentation.  
The veteran was afforded a VA examination for compensation 
purposes.  The examination report is of record.  There 
remains no issue as to the substantial completeness of the 
veteran's claim.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 
2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007).  Any duty 
imposed on the VA, including the duty to assist and to 
provide notification, has been met.  Quartuccio v. Principi, 
16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. 
Apr. 5, 2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 
2007); petition for cert. filed, __ U.S.L.W.__ (U.S. Mar. 21, 
2008) (No. 07A588).  


II.  Special Monthly Compensation 

Where a veteran's service-connected disability encompasses 
blindness of one eye with 5/200 visual acuity or less and 
anatomical loss of, or blindness having no light perception 
in the other eye, special monthly compensation at a rate 
equal to 38 U.S.C.A. § 1114(m) is payable.  38 C.F.R. 
§ 3.350(f)(2)(ii) (2007).  If the veteran, as the result of 
service-connected disability, has suffered the anatomical 
loss or loss of use of both hands, or of both legs at a 
level, or with complications, preventing natural knee action 
with prostheses in place, or of one arm and one leg at 
levels, or with complications, preventing natural elbow and 
knee action with prostheses in place, or has suffered 
blindness in both eyes having only light perception, or has 
suffered blindness in both eyes, rendering such veteran so 
significantly disabled as to be in need of regular aid and 
attendance, special monthly compensation shall be paid at the 
"m" rate.  38 U.S.C.A. § 1114 (West 2002 & Supp. 2007).  

Service connection is currently in effect for right eye 
enucleation evaluated as 100 percent disabling and right 
thumb fracture residuals evaluated as noncompensable.  The 
veteran is in receipt of special monthly compensation at the 
rate payable under 38 U.S.C.A. § 1114(m) (West 2002 & Supp. 
2007). 

The veteran advances on appeal that he is entitlement to 
additional special monthly compensation based solely on his 
need for regular aid and attendance.  The veteran has been 
awarded special monthly compensation at the rate payable 
under 38 U.S.C.A. § 1114(m).  The provisions of 38 U.S.C.A. 
§ 1114(m) encompass blindness rendering a veteran so 
significantly disabled as to be in need of regular aid and 
attendance.  As he is currently receiving special monthly 
compensation based, in part, upon the need for regular aid 
and attendance, the Board finds that the veteran has failed 
to advance an allegation of fact or law upon which relief may 
be granted.  Accordingly, the veteran's claim must be 
dismissed.  38 U.S.C.A. § 7105 (d)(5) (West 2002).  


ORDER

The appeal is dismissed.  



____________________________________________
J. T. Hutcheson
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs