Citation Nr: 18156546 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-38 501 DATE: December 11, 2018 ORDER Entitlement to special monthly compensation (SMC) at a rate higher than 38 U.S.C. § 1114 (n) based on aid and attendance and housebound for substitution purposes is denied. FINDINGS OF FACT 1. During his lifetime, the Veteran was granted SMC under 38 U.S.C. § 1114(n) and 38 C.F.R. § 3.350(d)(4) on account of blindness without light perception in both eyes from November 1953; the lesser rate of 38 U.S.C. § 1114(l) contemplates aid and attendance of another person. 2. The Veteran’s need for aid and attendance or housebound is based only on his blindness as a service-connected condition. CONCLUSION OF LAW The criteria for SMC at a rate higher than 38 U.S.C. § 1114 (n) based on aid and attendance and housebound for substitution purposes have not been met. 38 U.S.C. § 1114. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1952 to October 1953. The Veteran died in December 2012. His daughter, the Appellant, was substituted by a Department of Veterans Affairs (VA) Regional Office (RO) as the claimant in the current appeal. SMC is a benefit which is paid for certain service-connected disabilities, which result in impairment of the senses, loss or loss of use (of the extremities, creative organ, breast, or buttocks), or which render the Veteran housebound or in need of the regular aid and attendance of another person. 38 U.S.C. § 1114. While schedular rates of compensation are predicated on the average reduction in earning capacity, special monthly compensation benefits are meant to provide additional compensation based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability. VAOPGPREC 5-89 (Mar. 23, 1989). During his lifetime, the Veteran was service-connected for blindness rated as 100 percent disabling, and non-compensably rated for compound fracture of the right and left maxillae, retained foreign body of the left lung, and scarring of the left maxillae and face, shoulder and neck. The RO determined that the Veteran was entitled to SMC under 38 U.S.C. § 1114(n) and 38 C.F.R. § 3.350(d)(4) on account of his blindness without light perception in both eyes from November 1953. The Board notes that SMC based on his claimed need for the regular aid and attendance of another person is a benefit authorized by a lower SMC rate under 38 U.S.C. § 1114(l). SMC at the higher rate authorized by 38 U.S.C. § 1114 (n), as assigned to the Veteran, is available for a veteran who, as a result of service-connected disability, has suffered the anatomical loss of both eyes or blindness without light perception in both eyes. Because the Veteran’s eligibility for this benefit was granted, as opposed to SMC under 38 U.S.C. § 1114(l), he was afforded the greater payment benefit. However, there is still potential eligibility for SMC under 38 U.S.C. § 1114(o) if, as a result of his other service-connected conditions, he was regularly in need of the aid and attendance of another person. SMC at “the (o) rate” is warranted if a veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more of 38 U.S.C. § 1114 (l) through (n), with no condition being considered twice in the determination; if a veteran has suffered the anatomical loss of both arms with factors that prevent the use of prosthetic appliances; or bilateral deafness (and the hearing impairment in either one or both ears in service connected) rated at 60 percent or more disabling with service-connected total blindness with 5/200 visual acuity or less. The Veteran does not meet these criteria. SMC at “the (o) rate” is also warranted for total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and a veteran has also suffered service-connected blindness having only light perception or less. Id. The Veteran does not meet these criteria. Paralysis of both lower extremities together with the loss of anal and bladder sphincter control will entitle a veteran to the “o rate” of SMC, through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350 (e)(2). The Veteran does not meet these criteria. Determinations for entitlement to the (o) rate of SMC must be based upon separate and distinct disabilities. 38 U.S.C. § 1114 (o) authorizes the payment of additional SMC for conditions entitling the claimant to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114 (l) through (n). The record clearly showed that the Veteran was in need of the aid and attendance of another person due to his service-connected blindness. However, under 38 U.S.C. § 1114(o), additional benefits are not available unless the Veteran is entitled to compensation at one of the additional rates without any condition being considered twice, meaning that, to establish his eligibility to receive additional SMC under 38 U.S.C. § 1114(o), his blindness could not be considered. In this case, the other service-connected conditions did not result in the need of aid and attendance or housebound; those needs were due to the blindness and nonservice-connected conditions. See July 2010 VA examination report. Accordingly, entitlement to SMC at a rate higher than 38 U.S.C. § 1114 (n) based on aid and attendance and housebound for substitution purposes is not warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Connolly, Counsel