Citation Nr: 19187087 Decision Date: 11/19/19 Archive Date: 11/19/19 DOCKET NO. 17-50 772 DATE: November 19, 2019 ORDER Entitlement to special monthly compensation (SMC) at the rate provided by 38 U.S.C. § 1114 (t) based on the need for regular aid and attendance due to service-connected residuals of a traumatic brain injury (TBI) is granted. FINDING OF FACT The Veteran's service-connected TBI residuals require the need for personal health-care services provided on a daily basis in the Veteran's 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 to establish eligibility for SMC T have been met. 38 U.S.C. § 1114 (t) (West 2002); 38 C.F.R. §§ 3.350 (j), 3.352 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1979 November 1980. This matter comes to the Board of Veterans' Appeals (Board) from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. 1. Entitlement to SMC at a level higher than that provided by 38 U.S.C. § 1114 (p) By way of history, the Veteran sustained a self-inflicted gunshot wound to the head in November 1979 in what has been characterized as a “freak accident” while playing Russian Roulette with, what he believed to be, an unloaded gun. Unfortunately, the weapon was loaded and discharged, resulting in multiple injuries. The Veteran was subsequently separated from active duty while hospitalized in an Army medical facility. In a November 1982 decision, the Board determined that the Veteran’s actions in connection with the November 1979 incident did not constitute willful misconduct, and thus, the resulting injuries were incurred in the line of duty. Downstream from this decision, the AOJ established service connection for the disabilities resulting from this incident, including loss of use of the left (minor) arm and left foot (100 percent disabling), residuals of a craniotomy, including a skull defect of the right frontal lobe and parietal region (50 percent disabling), left central facial weakness (20 percent disabling), and right femoral nerve paralysis (10 percent disabling), all effective from November 14, 1980 – the day after the Veteran’s separation from active duty. Based on these awards, entitlement to SMC under 38 U.S.C. § 1114 (p) and 38 C.F.R. § 3.350(f)(1) at the rate intermediate between subsection (l) and subsection (m) was also established from November 14, 1980. As time progressed, the Veteran began experiencing additional sequalae for which service connection was established, including bilateral visual field deficits (currently 50 percent disabling), headaches and orbital pain (currently 40 percent disabling), right hand weakness (currently 30 percent disabling), peripheral vestibular disorder (currently 30 percent disabling), dry eye with epiphoria and lid irritation of the right eye (currently 10 percent disabling), tinnitus (currently 10 percent disabling), and bilateral hearing loss (currently zero percent disabling). Based on these awards, the Veteran’s SMC level was increased under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3) at the rate equal to subsection (m) from March 1, 1999. In October 2011, the Veteran submitted a statement that the AOJ accepted as a claim seeking an increased level of SMC; however, in the September 2013 rating decision, this issue was not formally adjudicated. Rather, the AOJ simply stated in the introduction of the rating decision that the Veteran did not meet the requirements for a higher level. The Veteran expressed timely disagreement with this determination, the present appeal ensued, and the issue was perfected and certified to the Board. Throughout the pendency of the appeal, the Veteran has asserted that he is entitled to SMC at the level of 38 U.S.C. § 1114(t), which is a relatively new and unique VA award. SMC T is a special benefit that is authorized by section 601 of the Veterans' benefit act of 2010. Pub. Law 111-275. Section 601 authorized an additional monetary allowance for veterans with residuals of a TBI who require a higher level of care, but do not qualify for the benefit under 38 U.S.C. § 1114 (r)(2). 83 FR 20735, 20736. This award was enacted effective October 1, 2011, as section “t” of 38 U.S.C. § 1114. The special monthly compensation provided by 38 U.S.C. § 1114(t) is payable to a veteran who, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under 38 U.S.C. § 1114 (r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. Determination of this need is subject to the criteria of § 3.352. 38 C.F.R. § 3.350 (j) (2019). Section 3.352(b)(2) provides that: A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section; (ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a 'higher level of care' (as defined in paragraph (b)(3) of this section) 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. Section (a) provides: Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance (§ 3.351(c)(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination. For the purpose of this paragraph "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Section (b)(3) provides: Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's 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. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. Unfortunately, despite the Veteran’s pointed assertion regarding his belief that he was/is entitled to SMC T, there is no indication in the September 2013 rating decision or September 2017 Statement of the Case that such entitlement was considered. Indeed, subsection (t) of 38 U.S.C. § 1114 is not among the VA laws listed for consideration or discussed in the initial adjudication of the Veteran’s claim or readjudication of the resulting appeal. As laid out above, the award for SMC T differs from the other subsections of 38 U.S.C. § 1114, as the criteria do not “build” on lower subsections based on certain disabilities. With the above in mind, the Board notes that the Veteran was provided VA examinations for Aid & Attendance in August 2013 and for many of his other service-connected disabilities stemming from his in-service head injury in August 2017; however, while these examination reports note that the Veteran needs daily assistance from others with his activities of daily living, the criteria of SMC T are not specifically addressed, discussed, or considered by the examiners and/or within the Disability Benefits Questionnaires (DBQs). Because qualifying for SMC T requires both a showing of aid and attendance under 38 C.F.R. § 3.352 (a) and the need for higher level care under 38 C.F.R. § 3.352 (b)(3), the criteria of both regulations must be met for the benefit to be awarded. To this point, the Board finds probative that the Veteran’s VA treatment records reflecting that, since January 2012, he has been receiving in-home, contracted healthcare through VA’s homemaker/home health aide (H/HHA) program. Under this program, the Veteran must apply for, and receive, annual certification for these services. The most recent recertification for this program within the Veteran’s file was completed in October 2017 by a VA physician who unambiguously stated, “It is my clinical judgment that the [Veteran] would, in absence of home community care services, need nursing home care.” The provisions of 38 C.F.R. § 3.352 (b) provide that it must be strictly construed and that SMC T may only be granted when the Veteran's need is clearly established. 38 C.F.R. § 3.352 (b)(6). In this case, it is unquestioned that the Veteran meets the requirements of 38 C.F.R. § 3.352 (a) concerning his need for daily aid and attendance of another person. Further, based on the examples of the health-care services provided in 38 C.F.R. § 3.352 (b)(2), it appears that the Veteran needs services that require a health-care professional or the supervision thereof on a daily basis. Moreover, it is clear from the VA physician’s statement for recertification of H/HHA contracted program that, if not for these services, he would need nursing home care. In light of above, the Board concludes that the most probative evidence reflects the need of aid and attendance under 38 C.F.R. § 3.352 (a) and the need for higher level care under 38 C.F.R. § 3.352 (b)(3). In such cases, the award of SMC T is warranted. 38 C.F.R. § 3.350 (j) (2019). As this award is, monetarily speaking, the highest disability benefit offered by VA, the Board need not discuss further ancillary matters. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008); Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.