Citation Nr: 18152214 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-46 613 DATE: November 21, 2018 ORDER Entitlement to special monthly compensation (SMC) based on the highest level of aid and attendance (claimed as higher rate of aid and attendance than L) is denied. FINDINGS OF FACT 1. The Veteran currently receives SMC under 38 U.S.C. § 1114 subsections (k), (l), (p), and (s); however, the Veteran does not receive, and is not entitled to receive, SMC at the rate authorized under subsection (o) of 38 U.S.C. § 1114; the maximum rate authorized under subsection (p) of 38 U.S.C. § 1114; or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) of 38 U.S.C. § 1114. 2. The Veteran is not in need of health-care services provided on a daily basis in the home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. CONCLUSION OF LAW The criteria for entitlement to SMC based on the highest level of aid and attendance (claimed as higher rate of aid and attendance than L) have not been met. 38 U.S.C. §§ 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty with the Army from February 1970 to September 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that during the pendency of this appeal a July 2018 rating decision by the RO granted entitlement to SMC under 38 U.S.C. § 1114 (p) and 38 C.F.R. § 3.350 (f) (3) at the rate intermediate between subsections (l) and (m) on account of entitlement to the rate equal to subsection (l) with additional disabilities independently ratable at 50 percent or more effective September 15, 2005. However, as the RO’s actions do not constitute a full grant of the benefit sought and the Veteran has not expressed satisfaction with the increased ratings, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Entitlement to SMC based on the highest level of aid and attendance (claimed as higher rate of aid and attendance than L) The appellant contends that the Veteran is entitled to SMC based on a higher level of care because the Veteran’s condition has worsened since he was awarded SMC aid and attendance by VA examination in September 2005. The appellant further adds that the Veteran was found to be incompetent in February 2005 and needs aid and assistance to perform daily living activities. SMC is available when, as the result of service-connected disabilities, a Veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of the Veteran’s service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114 (k). Higher levels of SMC are provided at 38 U.S.C. § 1114 (l), (m), (n), and (o). The evidence of record shows that the Veteran is currently service-connected for the following disabilities: coronary artery disease with hypertension rated at 100 percent; migraine headaches rated at 50 percent; degenerative disc disease, lumbar spine with history of lumbar strain rated at 40 percent; gout rated at 40 percent; degenerative joint disease of the left ankle rated at 20 percent; degenerative joint disease of the right ankle rated at 20 percent; left lower extremity radiculopathy associated with degenerative disc disease rated at 20 percent; right lower extremity radiculopathy associated with degenerative disc disease rated at 20 percent; degenerative joint disease, right knee rated at 20 percent; degenerative joint disease, left knee rated at 20 percent; instability, right knee rated at 10 percent; status post left 10th rib fracture rated non-compensable; and erectile dysfunction rated non-compensable. The combined evaluation for compensation is 100 percent. The RO awarded the Veteran SMC under 38 U.S.C. § 1114 (s) and 38 C.F.R. 3.350 (i) on account of coronary artery disease with hypertension rated at 100 percent and additional service-connected disabilities of degenerative disc disease of the lumbar spine, degenerative joint disease of the left ankle, degenerative disc disease of the right ankle, degenerative joint disease of the left knee, degenerative joint disease of the right knee, which are independently ratable at 60 percent or more from November 13, 2001 to September 15, 2005. The RO awarded the Veteran SMC under 38 U.S.C. § 1114 (k) and 38 C.F.R. § 3.350 (a) on account of loss of use of a creative organ from December 9, 2003. The RO awarded the Veteran SMC under 38 U.S.C. § 1114 (l) and 38 C.F.R, § 3.350 (b) on account of being so helpless as to be in need of regular aid and attendance while not hospitalized at the United States government’s expense from September 15, 2005. Finally, as noted previously, the RO awarded the Veteran SMC under 38 U.S.C. § 1114 (p) and 38 C.F.R. § 3.350 (f) (3) at the rate intermediate between subsections (l) and (m) on account of entitlement to the rate equal to subsection (l) with additional disabilities independently ratable at 50 percent or more effective September 15, 2005. The issue presently before the Board is whether the Veteran is entitled to SMC at the highest level of aid and attendance pursuant to 38 U.S.C. § 1114 (r). There are two parts to subsection (r): special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is discussed in (r)(2), which includes the need for hospitalization, nursing home care, or other residential institutional care. 38 U.S.C. § 1114 (r); 38 C.F.R. §§ 3.350 (h), 3.352. Both parts are prefaced by the requirements that a veteran be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o), and at the rate authorized under subsection (k). 38 U.S.C. § 1114 (r). Subsection (k) provides SMC for loss of or loss of use of one or more creative organs, or one foot, or one hand, or both buttocks, or blindness of one eye, only light perception, complete organic aphonia with constant inability to communicate by speech, or deafness of both ears, or for a woman, anatomical loss of 25 percent or more of tissue from a single breast or both breast in combination or has received radiation treatment of breast tissue. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350 (a). Subsection (n) addresses SMC for loss of or loss of use of both arms, both legs, or one arm and one leg all with factors preventing prosthetic placement; or loss of both eyes or blindness without light perception in both eyes. 38 U.S.C. § 1114 (n). Subsection (o) provides SMC for (i) anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114 (l) through (n); (iii) bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; (iv) service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. 38 C.F.R. § 3.350 (e) (1). Subsection (p) allows for an intermediate rate between any previous subsections in the event a veteran’s service-connected disabilities exceed the requirements but in no event in excess of $4,667. 38 U.S.C. § 1114 (p). After a review of the record, the Board finds that the Veteran does not meet the legal criteria for SMC under 38 U.S.C. § 1114 (r); 38 C.F.R. §§ 3.350 (h), 3.352. The Veteran is not entitled to SMC at the rate under subsection (o) of 38 U.S.C. § 1114. There is no evidence showing that the Veteran has anatomical loss of both arms and there is no evidence showing that he suffers from total deafness in either of his ears. While there is evidence that the Veteran is blind in his right eye with an acuity level of 20/100, this disability is not service-connected. As previously noted, based on subsection (p), the Veteran was granted an intermediate rate between subsections (l) and (m), but he does not meet the criteria for the maximum rate authorized under subsection (p), which is equal to the rate in subsection (o). See 38 U.S.C. § 1114. Additionally, the Veteran is not entitled to SMC at the intermediate rate between subsections (n) and (o). The Veteran has no service-connected disabilities affecting his sight, hearing, speech, or loss of or loss of use of any extremities. The Veteran was afforded a VA examination for his knee, lower leg, and ankle conditions in April 2014 and the examiner found that the functioning of his lower extremities was not so diminished that amputation with prosthesis would equally serve the Veteran. The Veteran has also not reported such. The record shows that the Veteran was granted SMC under subsection (k) for loss of use of a creative organ. While the evidence shows that the Veteran was awarded SMC under subsections (p) and (k), he was neither rated under the maximum criteria nor is he eligible for the maximum criteria. Additionally, there is no evidence to support SMC under subsection (o) or under an intermediate rate between subsections (n) and (o). Therefore, he is not statutorily eligible for SMC under 38 U.S.C. § 1114 (r) (1); 38 C.F.R. §§ 3.350 (h), 3.352. Additionally, there is no evidence that the Veteran receives personal health-care services provided on a daily basis in the Veteran’s home by a person who is licensed to provide such services. Thus, the Veteran is ineligible for a higher level of aid and attendance under 38 U.S.C. § 1114 (r) (2). The Board acknowledges the appellant’s contentions that a higher rate of aid and attendance is needed due to the Veteran’s finding of incompetency in February 2005 and the totality of his service-connected disabilities. As evidence to support this finding, the appellant provided an examination for housebound status or permanent need for regular aid and attendance dated September 2016. The examiner noted that the Veteran walks with the assistance of a walker, he is unable to prepare his own meals, he needs assistance bathing and tending to other hygiene needs, he is blind in his right eye, and requires medication management. However, the examiner found that the Veteran is able to feed himself, does not require nursing home care, and has the ability to manage his own finances. The VA considered this evidence regarding the Veteran’s housebound status when awarding an increase in SMC in the July 2018 rating decision. The evidence confirms that the Veteran has significant disabilities putting him in need of aid and attendance. The RO acknowledged this need for aid and attendance with the grant of SMC based on subsection (l). Also, the evidence confirms the grant of SMC under subsections (s), (k), and (p). However, as explained above,   the Veteran does not meet the criteria for SMC at a higher level of aid and attendance under subsection (r). 38 U.S.C. § 1114 (r); 38 C.F.R. §§ 3.350 (h), 3.352. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel