Citation Nr: 1807567	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-14 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to special monthly compensation based on the highest level of aid and attendance pursuant to the provisions of 38 U.S.C. § 1114(r)(2).

REPRESENTATION

Veteran represented by:	Oklahoma Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Tracie N. Wesner, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from August 1973 to August 1984 and in the United States Army from November 1990 to June 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.   


FINDING OF FACT

Throughout the appeal period, the Veteran has continuously been hospitalized for his service-connected disabilities at a long term care facility at the expense of the United States Government.


CONCLUSION OF LAW

The criteria for an increased level of special monthly compensation by reason of the need for a higher level of aid and attendance pursuant to the provisions of 38 U.S.C. § 1114(r)(2) have not been met.  38 U.S.C. §§ 1114(r)(2), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352, 3.552 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks special monthly compensation (SMC) for aid and attendance pursuant to 38 U.S.C. § 1114(r)(2) for a higher level of care needed due to his service-connected disabilities.  The Veteran is service connected for multiple sclerosis (MS) and numerous disabilities secondary to MS.  He contends that due to these service-connected disabilities, he requires personal health-care services provided on a daily basis by a person who is licensed to provide such services.

Generally, claims for SMC are governed by the provisions set forth at 38 U.S.C. § 1114(k) through (s), and 38 C.F.R. §§ 3.350 and 3.352.  SMC is payable if, as the result of a service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person.  38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).    

A veteran receiving the maximum rate of SMC under 38 U.S.C. § 1114(o) or (p) who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense.  38 C.F.R. § 3.350(h)(1).  The amount of the additional allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C. § 1114(r)(2).  

A veteran is entitled to the highest level of aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) and 38 C.F.R. § 3.350(h) in lieu of the regular aid and attendance allowance 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.A. § 1114(p); (ii) the veteran meets the requirements for entitlement to the regular aid and attendance allowance under 38 C.F.R. § 3.352(a); (iii) the veteran needs a "higher level of care" (as defined in 38 C.F.R. § 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.  38 C.F.R. § 3.352(b)(1)(i-iii).  As noted above, entitlement to the additional allowance is only permitted during periods that the veteran is not hospitalized at United States Government expense.  38 C.F.R. § 3.350(h)(1).

Additionally, 38 C.F.R. § 3.552 provides for the adjustment of an allowance for aid and attendance when a veteran is hospitalized.  According to this section, when a veteran is hospitalized at the expense of the United States Government, the additional aid and attendance allowance authorized by 38 U.S.C. § 1114(r) (1) or (2) will be discontinued effective the last day of the month following the month in which the veteran is admitted for hospitalization.  38 C.F.R. § 3.552(b)(2).  Thus, as the applicable regulations make clear, a veteran may not receive additional aid and attendance allowance authorized by 38 U.S.C. § 1114(r) (1) or (2) when he or she is hospitalized at the expense of the United States Government.  38 C.F.R. §§ 3.350(h)(1), 3.552(b)(2).


In this case, although the Veteran met the criteria for the first two requirements under 38 U.S.C. § 1114(r)(2), the evidence shows that throughout the relevant period on appeal he has been living at the Lawton Veterans Center, a long term care facility.  The Lawton Veterans Center is owned, operated and managed by the state of Oklahoma.  See https://odva.ok.gov/faq-page (What is an Oklahoma Veterans Center?).  The Lawton Veterans Center is also approved by VA and receives per diem payments from VA for the care of eligible veterans pursuant to 38 C.F.R. § 51.41.  See https://www.va.gov/COMMUNITYCARE/programs/veterans/statehome/index.asp (regarding the State Home Per Diem Program); http://www.nasvh.org/documents/links/VA-Regional-Alignment-Map-2-11x17.pdf (listing the Lawton Veterans Center as one in the State Home Per Diem Program).  The Board may take judicial notice of these facts because they are not subject to reasonable dispute.  Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012) (stating that the Court may take judicial notice of facts of universal notoriety that are not subject to reasonable dispute); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed.R.Evid. 201(b)).  

The Board finds that the Veteran's receipt of residential or nursing-home care at a facility that is in receipt of per diem payments from VA for his care constitutes hospitalization "at United States Government expense" within the meaning of 38 C.F.R. §§ 3.350(h)(1), 3.552(b)(2).  Cf. VAOPGCPREC 23-92 (the payment of greater aid and attendance allowance is permissible where the veteran is receiving residential or nursing home care in an institution at the veteran's own expense, but not permissible where the United States Government is already paying for institutional care).
 
Based on the foregoing, the Board concludes that because the Veteran has been in receipt of institutional care at United States Government expense throughout the appeal period, he is not eligible for SMC for aid and attendance during this time.  38 C.F.R. §§ 3.350(h)(1), 3.552(b)(2).  Thus, the Veteran's claim for SMC at the highest rate of aid and attendance under 38 U.S.C. § 1114(r)(2) must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 
ORDER

Entitlement to an increased rate of special monthly compensation based on the highest level of aid and attendance pursuant to the provisions of 38 U.S.C. § 1114 (r)(2) is denied. 





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs