Citation Nr: 1812909	
Decision Date: 03/01/18    Archive Date: 03/13/18

DOCKET NO.  15-36 031	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to additional compensation beyond the rate authorized in 38 U.S.C. § 1114(l) (2012) for special monthly compensation based on the need for aid and attendance of another person.


REPRESENTATION

Veteran represented by:	Disabled American Veterans









ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran had active service from August 1949 to May 1957. 

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The issues of entitlement to a certificate for specially adapted housing and compensation under 38 U.S.C. § 1151 (2012) for residuals of a naproxen overdose have been raised by the record in a September 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  In the November 2014 rating decision, the RO granted special monthly compensation based on the need for aid and attendance of another person effective August 22, 2013.

2.  VA has been paying the Veteran the rate authorized in 38 U.S.C. § 1114(l) for special monthly compensation based on the need for aid and attendance of another person effective from August 22, 2013.


CONCLUSION OF LAW

Additional compensation beyond the rate authorized in 38 U.S.C. § 1114(l) for special monthly compensation based on the need for aid and attendance of another person is not authorized as a matter of law.  38 U.S.C. § 1114; 38 C.F.R. § 3.21 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

However, in Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (the Court) held that the statute pertaining to the duties to notify and assist has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.

Under VA regulations, the basic rates for monthly disability compensation are found at 38 U.S.C. § 1114.  Congress updates these rates periodically, usually annually, for cost of living adjustments which are tied to increases in Social Security benefits.  38 U.S.C. § 1104(a).  According to 38 C.F.R. § 3.21, the rates of compensation are published in tabular form in Appendix B of the Veterans Benefits Administration Manual M21-1 and are to be given the same force and effect as if published in the Code of Federal Regulations at Title 38.  In mandating the adjustment monthly amount, Congress also mandates the effective date for the adjusted cost of living amount.  VA will pay a disabled Veteran the corresponding amount depending on level of disability.  There is no discretion authorized to the Secretary as to the amount to be paid, nor is there any discretion as to when the effective date for any increase in payments is authorized.

Compensation for need of regular aid and attendance due to service-connected disability is authorized at 38 U.S.C. § 1114(l).  A separate payment for special monthly compensation independent of other compensation provided in 38 U.S.C. §  1114 is only authorized for loss or loss of use of an organ described in 38 U.S.C. § 1114(k) and for benefits authorized in 38 U.S.C. § 1114(r).  

In the November 2014 rating decision, the RO granted special monthly compensation based on the need for aid and attendance of another person effective August 22, 2013.  VA has been paying the Veteran the rate authorized in 38 U.S.C. § 1114(l) for special monthly compensation based on the need for aid and attendance of another person effective from August 22, 2013.

In her January 2015 notice of disagreement, the Veteran argues that she should be paid at both the rate for a 100 percent rating, which is authorized by 38 U.S.C. § 1114(j), and the rate for special monthly compensation for aid and attendance, which is authorized by 38 U.S.C. § 1114(l).  The Veteran also notes that her ex-husband received nursing home benefits as well as compensation at the 100 percent disability rating.

Compensation authorized by 38 U.S.C. § 1114(j) and (l) are not independent of each other.  The Veteran can only receive compensate at one of those two rates and not at both of those rates.  As for her ex-husband receiving compensation under 38 U.S.C. § 1114(j) and receiving nursing home benefits, the Board notes that her ex-husband's situation pertains to payment of nursing home care, a benefit separate from compensation benefits authorized under 38 U.S.C. § 1114.

Under these circumstances, the Board finds that the claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to additional compensation beyond the rate authorized in 38 U.S.C.. § 1114(l) (2012) for special monthly compensation based on the need for aid and attendance of another person is denied as a matter of law.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs