Citation Nr: 21004686 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-00 975 DATE: January 27, 2021 ORDER Entitlement to special monthly compensation (SMC) at the intermediate rate between 38 U.S.C. § 1114(l) and (m) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to SMC at a rate higher than the intermediate rate between 38 U.S.C. § 1114(l) and (m) is remanded. FINDING OF FACT The Veteran’s visual impairment alone establishes a basis for entitlement to SMC under 38 U.S.C. § 1114(l); his visual impairment is separate, distinct, and involves different bodily systems from his PTSD, which is rated as 70 percent disabling. CONCLUSION OF LAW The criteria for entitlement to SMC at the intermediate rate between 38 U.S.C. § 1114 (l) and (m) have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350(f)(3), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to October 1968. This claim stems from a July 2012 rating decision issued by the Agency of Original Jurisdiction (AOJ), which the Veteran has properly appealed to the Board. In a September 2019 decision, the Board granted entitlement to SMC based on the need for aid and attendance at the rate prescribed under 38 U.S.C. § 1114(l) and denied entitlement to SMC at the statutory housebound rate under 38 U.S.C. § 1114(s). The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In an August 2020 Order, pursuant to a July 2020 Joint Motion for Partial Remand (Joint Motion), the Court vacated and remanded the issue of whether a rate in excess of that prescribed under 38 U.S.C. § 1114(l) was warranted. The parties agreed that the Board’s explanation for why a higher rating was not warranted was inadequate. Specifically, they found that the Board did not address the Veteran’s argument that he was entitled to an intermediate higher rate of SMC due to his service-connected PTSD, which is rated at 70 percent. The Joint Motion specifically did not take issue with the denial of SMC at the housebound rate. Entitlement to SMC at a rate higher than 38 U.S.C. § 1114(l) The Veteran and his representative are claiming that a higher rate of SMC is warranted; for the below reasons, the Board agrees. SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is codified under subsections 38 U.S.C. § 1114 (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the “s” rate). SMC at the “k” and “r” rates are paid in addition to any other SMC rates, with certain monetary limits. SMC at the “l” rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Pertinent to the Veteran’s claim, an intermediate (sometimes called a “half-step”) rate may be authorized when additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C. § 1114, but not above the “o” rate. 38 C.F.R. § 3.350(f)(3). The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114 (l) through (n) or the intermediate rate provisions outlined under (p). Id. As noted previously, the Board granted entitlement to SMC pursuant to 38 U.S.C. § 1114(l) in a September 2019 decision. While he was not found to be blind in both eyes, the grant of entitlement to SMC was largely predicated on the Veteran’s visual impairment, which the Board determined rendered him so helpless as to be in need of regular aid and attendance. The Board finds the evidence demonstrates that the Veteran’s service-connected visual impairment alone meets the threshold for entitlement to SMC pursuant to 38 U.S.C. § 1114(l); significantly, he requires assistance with most activities of daily living due to his vision problems. During this time, his PTSD, which is separate and distinct and involves different bodily systems from his visual impairment, has been rated as 70 percent disabling. Thus, entitlement to SMC at the intermediate rate between 38 U.S.C. § 1114(l) and (m) is granted. See 38 C.F.R. § 3.350(f)(3). REASONS FOR REMAND Entitlement to SMC at a rate higher than at the intermediate rate between 38 U.S.C. § 1114(l) and (m) Since this claim was last before the Board, additional VA treatment records, to include a September 2020 VA eye examination, have been associated with the record. A remand is required for the AOJ to review this evidence in the first instance to determine whether a higher rate of SMC is warranted. While this appeal is in remand status, the AOJ should also obtain all outstanding VA treatment records and associate them with the evidence of record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record. 2. Readjudicate the claim for entitlement to SMC at a rate higher than at the intermediate rate between 38 U.S.C. § 1114(l) and (m). J. Nichols Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.