Citation Nr: 18151725 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 18-46 707 DATE: November 20, 2018 ORDER Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(q) for inactive pulmonary tuberculosis is denied. FINDING OF FACT The Veteran was not receiving or entitled to receive compensation for tuberculosis on August 19, 1968. CONCLUSION OF LAW The criteria for SMC pursuant to 38 U.S.C. § 1114(q) for inactive pulmonary tuberculosis have not been meet. 38 U.S.C. §§ 1114(q), 5110; 38 C.F.R. §§ 3.350(g), 3.400(b)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1958 to August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to SMC pursuant to 38 U.S.C. § 1114(q)for inactive pulmonary tuberculosis. The Veteran contends that he is entitled to the statutorily designated minimum $67 SMC pursuant to 38 U.S.C. § 1114(q) for his service-connected inactive pulmonary tuberculosis. In pertinent part, applicable law provides that, for a veteran who was receiving or entitled to receive compensation for inactive tuberculosis (complete arrest) on August 19, 1968, the minimum monthly rate is $67.00. This minimum SMC is not to be combined with or added to any other disability compensation. 38 U.S.C. § 1114(q); 38 C.F.R. § 3.350(g)(1). Such further provides that, for a veteran who was not receiving or entitled to receive compensation for tuberculosis on August 19, 1968, the SMC authorized by paragraph (g)(1) of this section is not payable. Id.; 38 C.F.R. § 3.350(g)(2). The effective date for disability compensation will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400. The date of entitlement to an award of service connection, whether on a direct or presumptive basis, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i), (ii). The service treatment records show that the Veteran was seen for active pulmonary tuberculosis in July 1968. He was treated with chemotherapy and medications for almost one year. Subsequent examinations and chest films revealed inactive tuberculosis and his treatments were discontinued. A Medical Board Report in July 1971 noted that the condition was inactive. A November 1973 reenlistment examination noted a history of pulmonary tuberculosis treated in 1968, which remained completely inactive. The August 1978 separation examination noted a history of treatment for tuberculosis, and referenced the Medical Board findings that previously determined the condition was inactive. The Veteran was discharged from service on August 25, 1978. In March 1979, within a year of discharge from active duty service, the Veteran submitted a claim for service connection for pulmonary tuberculosis. He underwent a VA examination in May 1979, which reiterated prior examination findings that his pulmonary tuberculosis was inactive. By a rating decision in August 1979, the RO granted service connection for tuberculosis, effective August 26, 1978, the date after the Veteran was discharged from service. The disability was assigned a noncompensable disability rating as the condition was inactive. Subsequent treatment records fail to disclose an active disease process. While the Veteran had tuberculosis prior to August 19, 1968, he was on active duty at that time and was not entitled to, or eligible, to receive compensation as of such date. The date of the Veteran’s separation from active service was August 25, 1978. Thus, August 26, 1978 is the earliest possible effective date for the award of service connection for pulmonary tuberculosis. Consequently, there is no legal basis for entitlement to SMC under 38 U.S.C. § 1114(q) and 38 C.F.R. § 3.350(g)(1). Parenthetically, the Board also notes that the applicable regulations, in effect both prior to August 19, 1968, and currently, clearly state that a veteran cannot combine SMC under 38 U.S.C. § 1114(q) and 38 C.F.R. § 3.350(g)(1) with, or add it to, any other disability compensation. Here, throughout the appeal period, the Veteran has been in receipt of a 100 percent schedular rating. Therefore, his claim of entitlement to SMC under the provisions of 38 U.S.C. § 1114(q) and 38 C.F.R. § 3.350(g)(1), to be received in addition to his schedular compensation, also lacks legal merit. In conclusion, since the Veteran’s claim fails because of the absence of legal merit or lack of entitlement under the law, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana