Citation Nr: 20044544 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 17-29 930 DATE: July 2, 2020 ORDER Entitlement to an increased level of special monthly compensation (SMC) based on the need for a higher level of care at the rate specified under 38 U.S.C. § 1114(r)(2) is denied. FINDING OF FACT The Veteran is not in receipt of, nor does he meet the criteria for entitlement to, SMC under 38 U.S.C. § 1114(o) or 38 U.S.C. § 1114(p). CONCLUSION OF LAW The criteria for entitlement to an increased level of SMC based on the need for a higher level of care at the rate specified under 38 U.S.C. § 1114(r)(2) have not been met. 38 U.S.C. § 1114(r)(2); 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from June 1977 to May 1980 and from October 1981 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a videoconference hearing. The hearing transcript is associated with the file and has been reviewed. By way of procedural background, this matter was previously before the Board in October 2019, at which time the Board remanded the claim to obtain the Veteran’s records from the Social Security Administration (SSA). SSA records were associated with the claim file in January 2020, and the RO issued a Supplemental Statement of the Case (SSOC) in April 2020. The matter has now returned to the Board for further appellate consideration. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an increased level of SMC based on the need for a higher level of care at the rate specified under 38 U.S.C. § 1114(r)(2) The Veteran is service-connected for the following disabilities: major depression, recurrent (rated as 10 percent disabling from July 1, 1992, 70 percent disabling from December 23, 2005, and 100 percent disabling from November 19, 2015), tinnitus (rated as 10 percent disabling from July 1, 1992), early degenerative osteoarthritis of the bilateral knees (both rated noncompensable from July 1, 1992), bilateral hearing loss (rated noncompensable from July 1, 1992), and status post tonsillectomy and adenoidectomy (rated noncompensable from July 1, 1992). The Veteran is currently in receipt of SMC under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b), based on a need for regular aid and attendance while not hospitalized at government expense as a result of his service-connected major depression. He asserts that he is entitled to a higher level of SMC under the provisions of 38 U.S.C. § 1114(r)(2). SMC is available when, as the result of service-connected disability, a Veteran has additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. See Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011). The rate of SMC varies according to the nature of the Veteran’s service-connected disabilities. See Moreira v. Principi, 3 Vet. App. 522, 524 (1992). SMC under 38 U.S.C. § 1114(l) requires that the Veteran, as the result of service-connected disability, has the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l). SMC under 38 U.S.C. § 1114(m) requires that the Veteran, as a result of a service-connected disability, has the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has blindness in both eyes having only light perception, or has blindness in both eyes rendering the Veteran so significantly disabled as to be in need of regular aid and attendance. 38 U.S.C. § 1114(m). SMC under 38 U.S.C. § 1114(n) requires that the Veteran, as the result of service-connected disability, has the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has the anatomical loss of both eyes, or has suffered blindness without the light perception in both eyes. 38 U.S.C. § 1114(n). SMC under 38 U.S.C. § 1114(o) is warranted if the Veteran has suffered service-connected disability which would entitle him to two or more of the SMC rates listed in subsections (l) through (n), no condition being considered twice in the determination, or the Veteran has bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rated as 60 percent or more disabling and also has service-connected total blindness with 20/200 visual acuity or less, or the Veteran has service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rated as 40 percent or more disabling and has service-connected blindness having only light perception or less, or the Veteran has anatomical loss of both arms so near the shoulder as to prevent the use of prosthetics. 38 U.S.C. § 1114(o). 38 U.S.C. § 1114(p) provides for half- or full-step increases to the next higher rates in subsections (l) through (n) for a Veteran whose condition exceeds the requirements of his current rate, but does not qualify for the next higher rate. Breniser, 25 Vet. App. at 79. Under 38 U.S.C. § 1114(p), in the event the Veteran has service-connected blindness with 5/200 visual acuity or less and (1) also has bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at no less than 30 percent disabling, the Secretary shall allow the next higher rate, or (2) also has service-connected total deafness in one ear or service-connected anatomical loss or loss of use of one hand or one foot, the Secretary shall allow the next intermediate rate. In the event the Veteran has service-connected blindness, having only light perception or less, and also has bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 10 or 20 percent disabling, the Secretary shall allow the next intermediate rate. In the event the Veteran has the anatomical loss or loss of use, or a combination of anatomical loss and loss of use, of three extremities, the Secretary shall allow the next higher rate or intermediate rate. 38 U.S.C. § 1114(p). 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: (1) 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. § 1114(p); (2) the Veteran meets the requirements for entitlement to the regular aid and attendance allowance under 38 C.F.R. § 3.352(a); and (3) the Veteran needs a “higher level of care” 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). On review, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim. Specifically, the Veteran does not satisfy the first condition for entitlement to a higher level of SMC under 38 U.S.C. § 1114(r)(2), as he is not is entitled to the compensation authorized under 38 U.S.C. § 1114(o) or to the maximum rate of compensation authorized under 38 U.S.C. § 1114(p). First, the Board finds that Veteran is not entitled to the compensation authorized under 38 U.S.C. § 1114(o). SMC under 38 U.S.C. § 1114(o) is warranted if the Veteran has suffered service-connected disability which would entitle him to two or more of the SMC rates listed in subsections (l) through (n), no condition being considered twice in the determination, or the Veteran has bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rated as 60 percent or more disabling and also has service-connected total blindness with 20/200 visual acuity or less, or the Veteran has service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rated as 40 percent or more disabling and has service-connected blindness having only light perception or less, or the Veteran has anatomical loss of both arms so near the shoulder as to prevent the use of prosthetics. 38 U.S.C. § 1114(o). As an initial matter, the Board finds that the Veteran does not have any service-connected disabilities which would entitle him to two or more of the SMC rates listed in subsections (l) through (n). The Veteran is already in receipt of SMC under 38 U.S.C. § 1114(l) based on a need for regular aid and attendance while not hospitalized at government expense due to his service-connected major depression. As previously mentioned, the Veteran is service-connected for the following disabilities: major depression, recurrent (rated as 10 percent disabling from July 1, 1992, 70 percent disabling from December 23, 2005, and 100 percent disabling from November 19, 2015), tinnitus (rated as 10 percent disabling from July 1, 1992), early degenerative osteoarthritis of the bilateral knees (both rated noncompensable from July 1, 1992), bilateral hearing loss (rated noncompensable from July 1, 1992), and status post tonsillectomy and adenoidectomy (rated noncompensable from July 1, 1992). The Veteran does not assert, and the lay and medical evidence does not show, that as the result of service-connected disability, he has the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance by way of any other disability than his service-connected major depression, which could entitle him to a separate rating for SMC under 38 U.S.C. § 1114(l). Indeed, during the July 2019 Board hearing, the undersigned attempted to elicit testimony as to any impairment the Veteran experiences as a result of his service-connected hearing loss, tinnitus, and bilateral knee disability, and the Veteran’s spouse replied, “he gets around the apartment well…[i]t’s just getting him up to do things” that presents a challenge due to his major depression. Additionally, in a January 2016 private aid and attendance and housebound examination, Dr. M.M. noted that depression was the only disability restricting the Veteran’s activities and functions. Thus, the evidence does not establish entitlement to an additional, separate rating for SMC under 38 U.S.C. § 1114(l). Moreover, the Veteran does not assert, and the lay and medical evidence does not show, that as a result of a service-connected disability, he has the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has blindness in both eyes having only light perception, or has blindness in both eyes, which would entitle him to SMC under 38 U.S.C. § 1114(m). Furthermore, the Veteran does not assert, and the lay and medical evidence does not show, that as the result of service-connected disability, he has the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has the anatomical loss of both eyes, or has suffered blindness without the light perception in both eyes, such that would entitle him to SMC under 38 U.S.C. § 1114(n). As such, although the Veteran is in receipt of SMC at the (l) level based on being so helpless as to need regular aid and attendance due to his service-connected major depression, the evidence does not show he meets the criteria for an additional rating under subsections (l), (m), or (n) for the purposes of establishing entitlement to SMC under 38 U.S.C. § 1114(o). Lastly, the Veteran does not assert, and the lay and medical evidence does not show, that he has bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rated as 60 percent or more disabling and also has service-connected total blindness with 20/200 visual acuity or less, that he has service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rated as 40 percent or more disabling and has service-connected blindness having only light perception or less, or anatomical loss of both arms so near the shoulder as to prevent the use of prosthetics, which would otherwise entitle him to SMC under 38 U.S.C. § 1114(o). Accordingly, the Board finds that the Veteran does not meet any of the criteria for entitlement to SMC under 38 U.S.C. § 1114(o). Second, the Board finds that the Veteran is not entitled to the compensation authorized under 38 U.S.C. § 1114(p). 38 U.S.C. § 1114(p) provides for half- or full-step increases to the next higher rates in subsections (l) through (n) for a Veteran whose condition exceeds the requirements of his current rate, but does not qualify for the next higher rate. Breniser, 25 Vet. App. at 79. Under 38 U.S.C. § 1114(p), in the event the Veteran has service-connected blindness with 5/200 visual acuity or less and (1) also has bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at no less than 30 percent disabling, the Secretary shall allow the next higher rate, or (2) also has service-connected total deafness in one ear or service-connected anatomical loss or loss of use of one hand or one foot, the Secretary shall allow the next intermediate rate. In the event the Veteran has service-connected blindness, having only light perception or less, and also has bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 10 or 20 percent disabling, the Secretary shall allow the next intermediate rate. In the event the Veteran has the anatomical loss or loss of use, or a combination of anatomical loss and loss of use, of three extremities, the Secretary shall allow the next higher rate or intermediate rate. 38 U.S.C. § 1114(p). As an initial matter, the Veteran does not assert, and the lay and medical evidence does not show, that he has service-connected blindness with 5/200 visual acuity or less and (1) also has bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at no less than 30 percent disabling, or (2) also has service-connected total deafness in one ear or service-connected anatomical loss or loss of use of one hand or one foot, which would allow for the next intermediate rate of compensation under 38 U.S.C. § 1114(p). Moreover, the Veteran does not assert, and the lay and medical evidence does not show, that he has service-connected blindness, having only light perception or less, and also has bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 10 or 20 percent disabling, which would allow for the next intermediate rate of compensation under 38 U.S.C. § 1114(p). Furthermore, the Veteran does not assert, and the lay and medical evidence does not show, that he has the anatomical loss or loss of use, or a combination of anatomical loss and loss of use, of three extremities, which would allow for the next higher or intermediate rate of compensation under 38 U.S.C. § 1114(p). The Board acknowledges that in a November 2006 function report submitted as part of the Veteran’s claim for SSA benefits, he indicated his illnesses, injuries, or conditions affected his ability to lift, squat, bend, stand, reach, walk, kneel, and climb stairs. However, he reported that he was able to walk about 15 steps before needing to rest. See November 2006 function report. Also, although Dr. M.M. indicated in the January 2016 private aid and attendance and housebound examination report that the Veteran’s gait was guarded, that he walked carefully, that motion, weightbearing, balance, and propulsion of each lower extremity, and grip, fine movements, the ability to feed himself, button clothing, shave, and attend to the needs of nature with his upper extremities would “all be a challenge” for the Veteran due to his service-connected major depression, and that canes, braces, crutches, or the assistance of another person are required for the Veteran’s locomotion, there is no evidence, either lay or medical, demonstrating that the Veteran has lost the use of any of his extremities. Notably, loss of use of a hand or foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2)(i). This level of impairment is not shown in the record, since the Veteran still retains the effective function of his upper and lower extremities, even if, as Dr. M.M. suggests, it is “a challenge” to use them. In this regard, in VA treatment records dated July 2017 and November 2018, the Veteran indicated that he takes walks. Also, as previously discussed, during the July 2019 Board hearing, the Veteran’s spouse testified that “he gets around the apartment well…[i]t’s just getting him up to do things” that presents a challenge due to his major depression. Thus, the lay and medical evidence does not show that the Veteran has lost the use of any of his extremities. In sum, the Veteran is not entitled to the compensation authorized under 38 U.S.C. § 1114(o) or to the maximum rate of compensation authorized under 38 U.S.C. § 1114(p). As the Veteran does not satisfy the first condition for entitlement to SMC at the (r)(2) rate, the Board need not discuss the other two conditions, since all three are required for entitlement to SMC under 38 U.S.C. § 1114(r)(2) to be established. Additionally, to the extent the Veteran still asserts entitlement to SMC under 38 U.S.C. § 1114(t) (as mentioned in an October 2016 Notice of Disagreement), the Board finds that he is not entitled to this benefit, as it pertains to the need for regular aid and attendance due to the residuals of traumatic brain injury (TBI), and the record does not reflect that the Veteran is service-connected, or entitled to service connection, for a TBI. See March 2016 VA mental disorders examination report. The Board acknowledges the Veteran’s honorable service to his country and his sincere belief that he is entitled to a higher level of SMC, particularly in light of his spouse’s personal sacrifices to ensure he is properly cared for. See December 2015 Correspondence; January 2016 lay statement from the Veteran’s spouse. However, the Board must apply the law as promulgated and is bound by VA regulations. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). As the law is dispositive of the issue on appeal, the claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, for the reasons set forth above, the appeal is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, Associate 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.