Citation Nr: 21067781 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-42 483 DATE: November 5, 2021 REMANDED Entitlement to an effective date prior to February 3, 2014, for the payment of special monthly compensation (SMC) at the "R-1 rate" under 38 U.S.C. § 1114(r)(1) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1960 to May 1964. He died in May 2017, and his daughter has been recognized as the substituted appellant. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2015 Department of Veterans Affairs (VA) Appeals Management Office rating decision, which granted SMC at the S-1 rate, effective September 27, 2007. An interim rating decision in September 2015 granted SMC at the R-1 rate, effective June 30, 2015. In May 2016, the Veteran appeared at a Board videoconference hearing before the undersigned. A June 2016 Board decision denied an effective date prior to June 30, 2015 for the payment of SMC at the R-1 rate, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). A September 2016 CAVC Order granted a September 2016 Joint Motion for Remand (JMR) by the parties, thereby vacating the Board's decision and remanding the matter to the Board for action consistent with the terms of the JMR. In May 2017, the Board remanded the case for evidentiary and due process development regarding the claim. An April 2018 Board decision denied an effective date prior to June 30, 2015 for the payment of SMC at the R-1 rate. The appellant appealed the decision to the CAVC. A January 2019 CAVC Order granted a January 2019 JMR by the parties, thereby vacating the Board's decision and remanding the matter to the Board for action consistent with the terms of the JMR. In August 2019, the Board remanded the case for additional development regarding the claim. An October 2020 supplemental statement of the case and December 2020 rating decision granted an effective date of February 3, 2014 for SMC at the R-1 rate and granted an effective date of May 16, 2013 for service connection for loss of use of the feet. A February 2021 Board decision, in pertinent part, granted an effective date of September 27, 2007 for the payment of SMC based on loss of use of both feet under 38 U.S.C. § 1114(l) and denied an effective date prior to February 3, 2014 for the payment of SMC at the R-1 rate. The appellant appealed only that part of the Board decision denying an earlier effective date for SMC at the R-1 rate to the CAVC. An August 2021 CAVC Order granted an August 2021 JMR by the parties, thereby vacating the Board's decision as to the SMC at the R-1 rate issue and remanding the matter to the Board for action consistent with the terms of the JMR. Entitlement to an effective date prior to February 3, 2014, for the payment of SMC at the "R-1 rate" under 38 U.S.C. § 1114(r)(1) The parties agreed that the Board did not consider whether any of the Veteran's service-connected disabilities apart from loss of use of his feet merited the need for the regular aid and attendance (A&A) of another person, which would entitle him to an additional SMC under 38 U.S.C. § 1114(l), that would in turn satisfy criteria for SMC at the R-1 rate. For payment of SMC at the R-1 rate, which constitutes a special A&A, the Veteran must both (a) be in receipt of the maximum rate under 38 U.S.C. § 1114(o) or (p), and (b) meet the criteria for A&A under 38 C.F.R. § 3.352(a). For entitlement to SMC at the 38 U.S.C. § 1114(o) level, which provides higher levels of compensation for various combinations of disabilities, his disabilities must entitle him to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114(l), (m), or (n). For such combinations, determinations must be based upon separate and distinct disabilities; in other words, one disability cannot support both SMC entitlements. Entitlement to SMC at the 38 U.S.C. § 1114(p) level assigns whole or half steps of increased SMC depending on certain combinations of disabilities, which is not applicable here. (In that regard, when the May 2021 rating decision implemented the Board's February 2021 decision granting SMC based on loss of use of both feet, an award of SMC under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(4) was also granted. However, such award did not represent the maximum rate under 38 U.S.C. § 1114(p).) The parties found that in August 2016 and November 2015 statements, the Veteran and the appellant, respectively, reasonably raised the issue of entitlement to SMC on a basis other than loss of use of both feet, arguing in part that he was entitled to A&A based on his service-connected cancers and associated treatments (i.e., SMC under 38 U.S.C. § 1114(l)). Prior to February 3, 2014, those service-connected disabilities in effect that were not based on loss of use of the feet consisted of the following: squamous cell carcinoma of the lung to include chronic pneumonia ([rated] 100 percent from September 27, 2007); recurrent carcinoma of the larynx, status post total laryngectomy with neck dissection, aphonia, and dysphagia (100 percent from September 27, 2007); non-Hodgkin's lymphoma with anemia and thrombocytopenia (100 percent from May 21, 2010); diabetes mellitus, type 2 (20 percent from September 27, 2007); bilateral diabetic retinopathy, cataract with pseudophakia, glaucoma (20 percent from September 27, 2007); tinnitus (10 percent from September 27, 2007); bilateral hearing loss (noncompensable from September 27, 2007); and tinea cruris (noncompensable from May 21, 2010). In light of the statements of the JMPR concerning the raised issue of the Veteran's entitlement to SMC under 38 U.S.C. § 1114(l) based on disabilities other than that involving loss of use of the feet, a retrospective medical opinion is needed. To that end, it is observed that the July 2013 and April 2014 reports of VA examinations for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) are insufficient for assessing the Veteran's needs dating back to September 2007. (Indeed, it was not until a June 2013 Decision Review Officer decision that service connection was initially established for any disability, and evidence submitted up until that decision was for the purpose of substantiating claims of service connection.) The matter is REMANDED for the following action: Arrange for the claims file to be reviewed by an appropriate clinician. For the period from September 27, 2007 to February 3, 2014, the provider is asked to assess the Veteran's disability picture arising solely from the following service-connected disabilities: (a) beginning on September 27, 2007, squamous cell carcinoma of the lung to include chronic pneumonia; recurrent carcinoma of the larynx, status post total laryngectomy with neck dissection, aphonia, and dysphagia; diabetes mellitus, type 2; bilateral diabetic retinopathy, cataract with pseudophakia, glaucoma; tinnitus; and bilateral hearing loss (from September 27, 2007); and (b) beginning on May 21, 2010, non-Hodgkin's lymphoma with anemia and thrombocytopenia; and tinea cruris. Disability from loss of use of the feet may not be considered at any point. The consulting provider should respond to the following: (a). Is it at least as likely as not (a 50 percent or greater probability) that the Veteran required the regular aid and attendance of another individual solely on account of his service-connected disabilities (identified above)? If so, identify, to the extent factually and medically possible, the date from which it was ascertainable that the Veteran needed such assistance of another person. The criteria in the applicable regulation (38 C.F.R. § 3.352(a)) should be used, including whether, due to service-connected disability, the Veteran was able/unable to dress or undress, feed himself, keep himself ordinarily clean and presentable, and attend to the wants of nature. Further, did he require aid for a frequent need to adjust any medical appliances/devices (e.g., tracheostomy care)? Did he have an incapacity, physical or mental, that required care or assistance on a regular basis to protect him from hazards or dangers in the daily environment? (b). Is it at least as likely as not that the Veteran was permanently housebound (substantially confined to his dwelling and its immediate premises) due to his service-connected disabilities (identified above)? If so, identify, to the extent factually and medically possible, the date from which it was first ascertainable that he became housebound. In addition to the available medical records, the examiner should consider the lay statements of the Veteran (July 2015, August 2016), his daughter/appellant (February 2014, January 2015, July 2015, November 2015, January 2017 affidavit), son (February 2014), niece (February 2014), son-in-law (July 2015), and friend (March 2014). All opinions should include complete rationale. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.