Citation Nr: 21063006 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 13-10 695 DATE: October 12, 2021 ORDER The March 18, 2021, denial of entitlement to special monthly compensation by reason of being housebound or based on the need of regular aid and attendance is vacated. Entitlement to special monthly compensation by reason of being housebound or based on the need of regular aid and attendance is granted. FINDINGS OF FACT 1. On March 18, 2021, the Board of Veterans' Appeals (Board) issued a decision denying entitlement to special monthly compensation by reason of being housebound or based on the need of regular aid and attendance based on an erroneous finding that the Veteran did not meet the schedular criteria for SMC at the housebound rate. 2. The Veteran has additional service-connected disabilities apart from his service-connected major depressive disorder independently ratable at 60 percent or more disabling. CONCLUSIONS OF LAW 1. The criteria for vacatur of the Board's March 18, 2021, decision, to the extent the decision denied entitlement to special monthly compensation by reason of being housebound or based on the need of regular aid and attendance, are met. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. The criteria for entitlement to special monthly compensation based on the need of regular aid and attendance or being housebound are met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2005 to June 2008. This matter comes before the Board on appeal from a July 2009 rating decision. In March 2021, the Board, among other things, denied the issue of entitlement to SMC by reason of being housebound or based on the need of regular aid and attendance. As discussed below, that Board decision has been vacated. Vacatur and Grant of SMC The Board may vacate an appellate decision at any time upon request of the veteran or his or her representative, or on the Board's own motion, when a veteran has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. On March 18, 2021, the Board issued a decision denying entitlement to special monthly compensation by reason of being housebound or based on the need of regular aid and attendance (SMC) based on a finding that the Veteran did not meet the schedular criteria for SMC at the housebound rate. SMC is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. Under the law, subsection 1114(s) benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling; however, it does permit a TDIU to satisfy the statutory requirement of a "total" (100 percent) rating for SMC if based on one service-connected disability. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Here, a review of the records shows that the Veteran is in receipt of a TDIU due solely to his major depressive disorder (MDD). Apart from his MDD, the Veteran is also service-connected for: migraine headaches, evaluated as 50 percent disabling from April 11, 2013; TBI, evaluated as 10 percent disabling from December 17, 2009 and as 40 percent disabling from April 11, 2013; status post jaw fracture with temporomandibular joint dysfunction and headaches (TMJ), evaluated as 10 percent disabling from June 23, 2008, as 20 percent disabling from December 17, 2009, and as 40 percent disabling from March 11, 2015; low back strain, evaluated as 10 percent disabling from June 23, 2008 and as 20 percent from August 29, 2012; tinnitus, evaluated as 10 percent disabling from April 11, 2013; left malar complex fracture, with a noncompensable rating from July 1, 2009; and gastritis, with a noncompensable rating from June 23, 2008. The combined evaluation for these additional service-connected disabilities was 80 percent from April 11, 2013. Thus, the Veteran meets the schedular requirements for SMC based on housebound from April 11, 2013. Accordingly, the March 18, 2021 Board decision is vacated with respect only to the issue of entitlement of SMC, and SMC at the housebound rate is granted. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.