Citation Nr: 1329491	
Decision Date: 09/13/13    Archive Date: 09/20/13

DOCKET NO.  07-20 949A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUE

Entitlement to a higher level of special monthly 
compensation by reason of his spouse being in need of aid 
and attendance.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and L.B.


ATTORNEY FOR THE BOARD

P. Olson, Counsel

INTRODUCTION

The Veteran had active military service from March 1943 to 
November 1947 and from October 1950 to February 1952.

This matter is before the Board of Veterans' Appeals (Board) 
following Board Remands in April 2013 and July 2013.  This 
matter was originally on appeal from rating decisions of the 
Department of Veterans Affairs (VA), Regional Offices (ROs) 
in Los Angeles, California and Cleveland, Ohio.  The Los 
Angeles RO has forwarded to claims files to the Board.

In March 2013, the Veteran testified at a Travel Board 
hearing at the Los Angeles RO.  A transcript of that hearing 
is of record.

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2012).  
38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran is receiving the maximum level of special 
monthly compensation by reason of his spouse being in need 
of aid and attendance.


CONCLUSION OF LAW

The criteria for special monthly compensation at a statutory 
rate higher than that provided by reason of the Veteran's 
spouse being in need of aid and attendance have not been 
met.  38 U.S.C.A. § 1115 (West 2002 & Supp. 2012); 38 C.F.R. 
§ 3.351 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 
2000 (VCAA), the United States Department of Veterans 
Affairs (VA) has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 
2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  
The Board may proceed with the issue on appeal at this time 
without reviewing the provisions of the Veterans Claims 
Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 
5103A; 38 C.F.R. §§ 3.102, 3.159.  The United States Court 
of Appeals for Veterans Claims (Court) has held that, in a 
case where the law is dispositive of the claim, the claim 
should be denied for lack of legal merit under the law.  See 
Sabonis v. Brown, 6 Vet. App. 426 (1994).  That Court has 
also held that the VCAA has no effect on an appeal where the 
law, and not the underlying facts or development of the 
facts, is dispositive in the matter.  See Manning v. 
Principi, 16 Vet. App. 534, 542 (2002).

The Veteran claims that he is entitled to a higher level of 
special monthly compensation by reason of his spouse being 
in need of aid and attendance. 

Under applicable criteria, any Veteran who is entitled to 
disability compensation at the rates provided in 38 U.S.C.A. 
§ 1114, whose disability is rated not less than 30 percent 
disabling, and whose spouse is a patient in a nursing home, 
or helpless or blind, or so nearly helpless or blind as to 
need or require the regular aid and attendance of another 
person, is entitled to additional compensation by reason of 
the spouse's need for aid and attendance.  38 U.S.C.A. § 
1115; 38 C.F.R. § 3.351(2). 

The rates of compensation are published in tabular form in 
Appendix B of the Veterans Benefits Administration Manual 
M21-1 and are to be given the same force and effect as if 
published in the Code of Federal Regulations.  See 38 C.F.R. 
§ 3.21. 

The rates are periodically adjusted.  The rates currently in 
effect from December 1, 2012, provide that for a Veteran 
rated as 70 percent disabled, an additional $101 is awarded 
for a dependent spouse in need of aid and attendance; and 
for a Veteran rated as 100 percent disabled, an additional 
$144 is awarded for a dependent spouse in need of aid and 
attendance.  See M21-1, Part I, Appendix B, effective 
December 1, 2011.  The appellant is advised that these are 
the maximum rates for an aid and attendance allowance for a 
spouse of a Veteran rated as 70 percent and 100 percent 
disabling, respectively, and the claims folder indicates 
that he is in receipt of the maximum rate.

The rate of payment to the Veteran is, as noted, based in 
part on his disability rating.  As noted, he is currently 
rated 100 percent disabled, and is receiving the maximum 
rate for his spouse's disablement.  While at 70 percent he 
was also receiving the maximum allowable for that rate.

In conclusion, based on the above cited reasons, the Board 
finds that the Veteran is not entitled to special monthly 
compensation at a rate higher than that provided for by 38 
U.S.C.A. § 1114 (r)(1) as a result of the need for aid and 
attendance of another person must be denied as a matter of 
law.


ORDER

Entitlement to a higher level of special monthly 
compensation by reason of his spouse being in need of aid 
and attendance is denied as a matter of law.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs