Citation Nr: 18148723 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 17-41 487 DATE: November 8, 2018 ORDER Entitlement to an increased payment rate for Dependency and Indemnity Compensation (DIC) based on aid and attendance is denied. FINDINGS OF FACT 1. The Appellant is in receipt of the base rate for DIC plus the increased based on need for aid and attendance. 2. There is no regulatory or statutory authority for a higher rate of DIC based on the need for aid and attendance. CONCLUSION OF LAW The criteria for an increased payment rate for DIC based on need for aid and attendance have not been met. 38 U.S.C. 1311; 38 C.F.R. §§ 3.5, 3.10, 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from August 1974 to August 1978 and April 1980 to October 1992. The Veteran died in June 2016. The Appellant is his surviving spouse. 1. Entitlement to an increased payment rate for DIC based on need for aid and attendance. An October 2016 rating decision granted DIC based on aid and attendance. The Appellant asserts that she is entitlement to a higher rate of DIC benefits. VA DIC benefits are payable to a veteran’s surviving spouse when the veteran dies due to a service-connected disability. 38 U.S.C. §§ 1310, 1311; 38 C.F.R. § 3.5. The basic monthly rate of DIC benefits for a surviving spouse will be the amount specified in 38 U.S.C. § 1311(a)(1); 38 C.F.R. § 3.10(b). The basic monthly rate will be increased by the amount specified in 38 U.S.C. § 1311(a)(2) if the veteran, at the time of his death, was receiving or was entitled to receive compensation for a service-connected disability that was rated as totally disabling for a continuous period of at least eight years immediately preceding death. 38 U.S.C. § 1311; 38 C.F.R. § 3.10(c). If the surviving spouse is determined to be in need of regular aid and attendance under the criteria in § 3.352 or is a patient in a nursing home, the monthly DIC rate will be increased by the amount set forth in 38 U.S.C. 1311(c). 38 C.F.R. § 3.10(e)(2). Additional increases are available if the surviving spouse has children under the age of 18 and if the surviving spouse is housebound under § 3.351(e). In addition, 38 C.F.R. § 3.351(e) provides that the monthly rate of dependency and indemnity compensation payable to a surviving spouse who does not qualify for increased dependency and indemnity compensation under 38 U.S.C. 1311(c) based on need for regular aid and attendance shall be increased by the amount specified in 38 U.S.C. § 1311(d) if the surviving spouse is permanently housebound by reason of disability. The “permanently housebound” requirement is met when the surviving spouse is substantially confined to his or her home (ward or clinical areas, if institutionalized) or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse’s lifetime. The Appellant is currently compensated for DIC based on the base rate under 38 U.S.C. § 1311(a)(1) plus the additional increase for aid and attendance pursuant to 38 U.S.C. § 1311(c). The preponderance of the evidence is against any additional compensation for DIC. The evidence does not show that at the time of the Veteran’s death he was receiving or entitled to receive compensation for a service-connected disability that was rated as totally disabling for a continuous period of at least eight years immediately preceding death. 38 U.S.C. § 1311; 38 C.F.R. § 3.10(c). Although the Veteran was assigned a 100 percent rating for posttraumatic stress disorder (PTSD) from February 8, 2011 – his 100 percent rating had not been continuous for 8 years when he died in June 2016. The evidence also does not show that the Appellant has any minor children. In support of her claim, the Veteran reported that due to her physical condition she is unable to work. She indicated she had 3 surgeries and does not have anyone in the United States to help her. She further reported having significant medical bills. See June 2017 Notice of Disagreement. She also reports that her physical condition causes her to stay home. See August 2017 VA Form 9. She further requests to receive half of the Veteran’s service award. Id. Although the Appellant statements suggest that she may be housebound, the law provides that she cannot receive separate increases in DIC compensation for both aid and attendance and housebound status. See 38 C.F.R. §§ 3.10(e)(3), 3.351(e). Notably, VA law provides for a higher increase based on aid and attendance. Furthermore, while the Board is sensitive the Appellant’s health condition and expenses, the Board lacks the authority to alter the amount paid in such circumstances as the compensation rate is set by law. Accordingly, the appeal must be denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel