Citation Nr: 21001023 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-32 499 DATE: January 6, 2021 ORDER Entitlement to special monthly compensation (SMC) at the rate specified in 38 U.S.C. § 1114(s) is dismissed. FINDING OF FACT Entitlement to SMC at the rate specified in 38 U.S.C. § 1114(s) from January 13, 2012 was granted in a December 2019 rating decision; there is no longer any specific error of fact or law in the determination being appealed. CONCLUSION OF LAW The criteria for dismissal of the claim of entitlement to SMC at the rate specified in 38 U.S.C. § 1114(s) have been met. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a TDIU. In an October 2019 decision, the Board granted entitlement to a TDIU prior to July 11, 2018 and dismissed the matter of entitlement to a TDIU from July 11, 2018. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, granting a June 2020 Joint Motion for Partial Remand (Joint Motion), the Court partially vacated the Board’s June 2020 decision and remanded the matter of entitlement to SMC at the rate specified in 38 U.S.C. § 1114(s) for compliance with the directives specified in the Joint Motion. 1. Entitlement to entitlement to SMC at the rate specified in 38 U.S.C. § 1114(s). The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C. § 511(a); 38 C.F.R. § 20.101(a). The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. 38 C.F.R. § 20.104. In this matter, the Veteran filed a claim of entitlement to a TDIU on January 13, 2012. His claim was denied in a June 2013 rating decision and subsequently appealed to the Board. As detailed above, the October 2019 Board decision granted entitlement to a TDIU prior to July 11, 2018 and dismissed the matter of entitlement to a TDIU from July 11, 2018 as moot. The Veteran appealed the decision to the Court. In a June 2020 Joint Motion, the parties determined that, in the October 2019 decision, the Board failed to address whether the Veteran’s service-connected PTSD alone prevents him from obtaining or maintaining substantially gainful employment for the purpose of determining eligibility for SMC. The parties therefore remanded the matter of entitlement to SMC at the rate specified under 38 U.S.C. § 1114(s) for readjudication. The parties did not disturb the Board’s award of entitlement to a TDIU prior to July 11, 2018 or the Board’s dismissal of the matter of entitlement to a TDIU from July 11, 2018 as moot. Accordingly, pursuant to the Joint Motion, the Board must consider the question of whether the Veteran is entitled to SMC at the rate specified under 38 U.S.C. § 1114(s). The parties specifically directed the Board to address whether the Veteran’s PTSD alone prevents him from obtaining or maintaining substantially employment for the purpose of determining his eligibility for SMC. Pursuant to 38 U.S.C. § 1114(s), when a veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. A review of the record demonstrates that the October 2019 Board decision was effectuated in a December 2019 rating decision, which granted entitlement to a TDIU from January 13, 2012 (the date of the TDIU claim) to July 11, 2018. Significantly, the December 2019 rating decision also granted entitlement to SMC at the rate specified under 38 U.S.C. § 1114(s) from January 13, 2012. This determination was specifically based upon a finding that entitlement to SMC under 38 U.S.C. § 1114(s) was warranted based upon PTSD with major depressive disorder rated as 100 percent disabling and additional service-connected disabilities of peripheral neuropathy, right upper extremity, peripheral neuropathy, left upper extremity, left lower extremity peripheral neuropathy (sciatic), right lower extremity peripheral neuropathy(femoral), diabetes mellitus type II, bilateral tinnitus, right lower extremity peripheral neuropathy(sciatic), bilateral hearing loss, independently ratable at 60 percent or more from January 13, 2012. Therefore, the matter of entitlement to SMC at the rate specified under 38 U.S.C. § 1114(s) has been granted from January 13, 2012, the date of the claim of entitlement to a TDIU. The evidence does not suggest, nor does the Veteran contend, that entitlement to SMC is warranted prior to January 13, 2012. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim on appeal and it is dismissed. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.