Citation Nr: 21070065 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 05-11 335 DATE: November 22, 2021 REMANDED The issue of a higher rate of special monthly compensation (SMC) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from October 1962 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision. In a January 2012 decision, the Board remanded the issue of a higher rate of SMC, specifically at the "s" rate, for consideration by the agency of original jurisdiction (AOJ). In a November 2014 decision, the Board again remanded the Veteran's claim indicating that the AOJ had not readjudicated the Veteran's claim. In April 2015, the AOJ issued a supplemental statement of the case (SSOC) denying a higher rate of SMC. In a November 2015 decision, the Board determined that there was no indication that the AOJ had considered the issue of a higher rate of SMC at the "s" rate in the first instance and again remanded the matter for AOJ consideration. In an April 2016 SSOC, the AOJ determined that the Veteran did not meet the criteria for a higher rate of SMC at the "s" rate. In an August 2018 decision, the Board found that although in the April 2016 SSOC the AOJ determined that the Veteran did not meet the criteria for a higher rate of SMC at the "s" rate, the AOJ's rationale was pertinent only as to why the Veteran is not entitled to SMC at the "l" rate prior to August 7, 2010. Moreover, the Board noted that the Veteran had been assigned earlier effective dates for the grant of service connection for peripheral neuropathy of the left lower extremity, left upper extremity hemiparesis, and facial asymmetry. The Board found that the AOJ should clarify whether the Veteran is entitled to SMC at a higher rate, to include the "s" rate, in the context of his currently assigned rates of SMC. Lastly, the Board found that the Veteran should be afforded a VA examination to determine whether he is now housebound as a result of his service-connected disabilities. In a January 2021 remand, the Board noted that it appears that the Veteran has been receiving SMC at a rate higher than at the "s" rate since August 7, 2010. Thus, to the extent that earlier remands indicated that the issue on remand was entitlement to SMC at the "s" rate subsequent to August 7, 2010, that appears to be an error. Nonetheless, the Veteran is appealing a higher rate of SMC. The January 2021 remand directed that the Veteran be scheduled for an examination. Additionally, the RO was to: Readjudicate the claim on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case. The AOJ should clarify the Veteran's entitlement to SMC, at all potential pertinent rates to include the "s" rate from November 13, 1998. The AOJ's rationale should include a discussion of the rates of SMC already assigned. The Veteran should be given an opportunity to respond to the SSOC before the case is returned to the Board. The Veteran was scheduled for an examination, however in June 2021 he cancelled the examination. The Veteran stated, "I was shown by VA [standards], I would not be granted Aid and Attendance, because I am not blind or housebound. Therefore, I request to cancel my existing claim for Aid and Attendance at this time." A September 2021 SSOC noted, in part, that the Veteran was "in receipt of aid and attendance benefits. The issue at hand is entitlement to a higher rate of special monthly compensation. For this reason, your appeal is not considered withdrawn at this time based on your June 2021 letter. If it is your intention to withdraw your current appeal, you may write to us to inform our office of this intention. All outstanding VA clinical records were also associated with your claims file. However, review of the records failed to show that you meet the requirements for your claimed benefit. In view of the above, entitlement to a higher rate of special monthly compensation (SMC) is not warranted. There is no approximate balance of positive and negative evidence to unsatisfactorily prove or disprove your claim. The preponderance of evidence is against your claim, therefore, we cannot resolve reasonable doubt in your favor. We have met our duty to assist you in the development of your claim. You were specifically notified of the evidence required to support your claim. We conclude that all relevant facts have been properly developed and no further assistance is required to comply with the duty to assist provisions." The Board finds that the September 2021 SSOC was not compliant with the January 2021 remand instructions as it did not "clarify the Veteran's entitlement to SMC, at all potential pertinent rates to include the "s" rate from November 13, 1998. The AOJ's rationale should include a discussion of the rates of SMC already assigned." A remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The case must be again remanded for the RO to issue an SSOC that complies with the January 2021 remand instructions. The matter is REMANDED for the following action: Readjudicate the claim on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case. The AOJ should clarify the Veteran's entitlement to SMC, at all potential pertinent rates to include the "s" rate from November 13, 1998. The AOJ's rationale should include a discussion of the rates of SMC already assigned. The Veteran should be given an opportunity to respond to the SSOC before the case is returned to the Board. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.