Citation Nr: 1539296 Decision Date: 09/14/15 Archive Date: 09/24/15 DOCKET NO. 09-19 645 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to additional special monthly compensation under 38 U.S.C. § 1114(o) and 38 U.S.C. § 1114(r)(1). ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to December 1981. The Veteran died in April 2014. The appellant is the Veteran's surviving spouse and in April 2015 VA granted her motion for substitution. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction over the appeal was since transferred to the RO in in Manila, the Republic of the Philippines. In January 2014, the Veteran failed to show for the hearing that he had requested before a Veterans' Law Judge traveling to the RO and therefore this hearing request is considered withdrawn. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's aid and attendance and loss of use of his right hand and right foot are based on the same disabilities. 2. The Veteran does not meet the criteria for additional special monthly compensation under 38 U.S.C. § 1114(o) or receive the maximum special monthly compensation rate under 38 U.S.C. § 1114(p). CONCLUSION OF LAW The criteria for additional special monthly compensation under 38 U.S.C. § 1114(o) and 38 U.S.C. § 1114(r)(1) have not been met at any time during the pendency of the appeal. 38 U.S.C.A. §§ 1114, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.350, 3.352 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. The Board finds that letters dated in November 2006, March 2007, and May 2007, prior to the August 2007 rating decision, provided notice that fulfills the provisions of 38 U.S.C.A. § 5103(a). Further, even if the above letters did not provide adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, and the supplemental statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including his service treatment records as well as his post-service medical records. See 38 U.S.C.A. § 5103A(b). The Veteran was provided a VA examination in May 2007. The Board finds the VA examination is adequate because after a comprehensive examination of the claimant and taking a detailed history, the examiner provided an opinion as to the severity of his service-connected disabilities that allows the Board to rate them under all relevant Diagnostic Codes. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the claims files including the Virtual VA and VBMS claims files. The Claims First the Veteran and know his widow contend that they are entitled to a higher level of special monthly compensation (SMC). They contend, in substance, that the Veteran is entitled to SMC under subsections (o) and (r)(1) of 38 U.S.C.A. § 1114 because all the criteria are met. In this regard, SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. 38 U.S.C.A. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the "k" and "r" rates are paid in addition to any other special monthly compensation rates, with certain monetary limits. As relevant to the appellant's claim, SMC at the "o" rate is warranted if the Veteran has service-connected disabilities which would entitle him to 2 or more of the SMC rates listed in subsections (l) through (n). SMC also is payable at the "o" rate if the Veteran has bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rated as 60 percent or more disabling and also has experiences service-connected total blindness with 5/200 visual acuity or less. SMC also is payable at the "o" rate if the Veteran experiences service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rate as 40 percent or more disabling and has service-connected blindness having only light perception or less. SMC finally is payable at the "o" rate if the Veteran experiences anatomical loss of both arms so near the shoulder as to prevent the use of prosthetics. See 38 U.S.C.A. § 1114(o). Determinations for entitlement to the "o" rate of SMC must be based upon separate and distinct disabilities. That requires, for example, that where a Veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. See 38 C.F.R. § 3.350(e). SMC at the "(r)(1)" rate is warranted when all of the following conditions are met: (i) the Veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o) or the maximum rate of compensation authorized under 38 U.S.C. 1114(p); (ii) the Veteran meets the requirements for entitlement to the regular aid and attendance allowance in 38 C.F.R. § 3.352(a); and (iii) the Veteran needs a "higher level of care" (as defined in § 3.352(b)(2)) 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 the Veteran would require hospitalization, nursing home care, or other residential institutional care. See 38 U.S.C. § 1114(r); 38 C.F.R. § 3.352(b)(1)(i-iii). 38 U.S.C.A. § 1114(p) provides for "intermediate" SMC rates between the different subsections based on anatomical loss or loss of use of the extremities or blindness in connection with deafness and/or loss or loss of use of a hand or foot. See 38 U.S.C.A. § 1114(p); 38 C.F.R. § 3.350(f). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). The facts of this appeal are not in dispute and are as follows. The Veteran is service connected for a cerebrovascular accident (CVA) with peripheral neuropathy and the loss of use of right hand and right foot and hypertension rated as 100 percent disabling effective June 19, 2000, under Diagnostic Code 8007-5111; renal failure due to diabetes mellitus with cataracts and retinopathy rated as 100 percent disabling effective May 11, 2005, under Diagnostic Code 7541-7530; diabetes mellitus with cataracts, retinopathy, and renal failure most recently rated as 60 percent disabling effective June 19, 2000, to October 31, 2006, under Diagnostic Code 7913; diabetes mellitus with cataracts, retinopathy, and left upper and lower extremity peripheral neuropathy rated as 60 percent disabling effective October 31, 2006, under Diagnostic Code 7913; hypertension most recently rated as 10 percent disabling effective April 23, 1991, under Diagnostic Code 7101; right facial drop rated as 10 percent disabling effective December 7, 2000, under Diagnostic Code 8207; post traumatic costochondritis most recently rated as 0 percent disabling effective April 1, 1983, under Diagnostic Code 5299-5297; and erectile dysfunction rated as 0 percent disabling effective February 16, 2002, under Diagnostic Code 7599-7522. The record also shows the Veteran is entitled to SMC at the rate intermediate between subsection (l) and subsection (m) (i.e., at the (p)(1) rate) (also see 38 CFR 3.350(f)(3)) on account of cerebrovascular accident with right hemiparesis and loss of use of right hand and right foot with additional disability, diabetes mellitus with early bilateral cataracts, renal disease/mild renal insufficiency, and proliferative diabetic retinopathy independently ratable at 50 percent or more disabling; SMC at the (l) rate (also see 38 CFR 3.350(b)) on account of the loss of use of one hand and the loss of use of one foot; SMC at the (l) rate (also see 38 CFR 3.350(b)) on account of being so helpless as to be in need of regular aid and attendance while not hospitalized at U.S. government expense; and SMC at the (k) rate (also see 38 CFR 3.350(a)) on account of the loss of use of a creative organ. As to SMC under 38 U.S.C. § 1114(o), the record shows that the Veteran was assigned SMC for aid and attendance and the loss of use of his right hand and right foot. Therefore, the Board finds that the criteria for SMC under 38 U.S.C. § 1114(o) are not met because his aid and attendance and loss of use of his right hand and right foot are based on the same disabilities. This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings is not warranted. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As to SMC under 38 U.S.C. § 1114(r)(1), as explained above, the Veteran does not meet the criteria for SMC under 38 U.S.C. § 1114(o). Moreover, as can be seen above, that Veteran does not meet the criteria for the maximum rate of compensation authorized under 38 U.S.C.A. § 1114(p) because he was only entitled to SMC at the (p)(1) rate, (l) rate, (l) rat, and (k) rate. Therefore, since a condition precedent for qualifying for SMC under 38 U.S.C. § 1114(r)(1) is qualifying for SMC under 38 U.S.C. § 1114(o) or the maximum rate of compensation authorized under 38 U.S.C.A. § 1114(p), the claim for SMC under 38 U.S.C. § 1114(r)(1) must also be denied. This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings is not warranted. See Fenderson; Hart. Here, the basis of the Board's denial is not necessarily that the Veteran did not need the aid and attendance of another person. Rather, the basis is the level of disability, which in this case does not allow for an SMC award at a sufficiently high rate to warrant a separate or higher entitlement to benefits based on that need for aid and attendance. ORDER Additional special monthly compensation under 38 U.S.C. § 1114(o) and 38 U.S.C. § 1114(r)(1) is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs