Citation Nr: 21006310 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-19 231 DATE: February 3, 2021 ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance of the Veteran's spouse for the period prior to February [REDACTED], 2019 is denied. Entitlement to special monthly compensation based on the need for regular aid and attendance of the Veteran’s spouse for the period after to February [REDACTED], 2019 is dismissed. FINDINGS OF FACT 1. For the period prior to February [REDACTED], 2019, the Veteran’s combined disability rating is less than 30 percent. 2. The Veteran’s spouse died on February [REDACTED], 2019, rendering moot the issue of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance for the Veteran’s spouse from that date. CONCLUSIONS OF LAW 1. For the period prior to February [REDACTED], 2019, the criteria for SMC based on the need for regular aid and attendance of the Veteran’s spouse have not been met. 38 U.S.C. §§ 1114, 1115 (2012); 38 C.F.R. §§ 3.351, 3.352 (2019). 2. For the period after February [REDACTED], 2019, the issue of entitlement to SMC based on the need for regular aid and attendance of the Veteran's spouse is dismissed as moot. 38 U.S.C. §§ 1114, 1115 (2012); 38 C.F.R. §§ 3.351, 3.352 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1951 to May 1953. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An April 2018 Board decision remanded the issues on appeal for further development. A January 2020 rating decision granted service connection for a bilateral hearing loss disability. As this constituted a complete grant of the issue on appeal, it is not before the Board. A March 2020 Board decision denied SMC and special monthly pension based on the Veteran’s need for regular aid and attendance or by reason of being housebound, and those issues are therefore not before the Board. The March 2020 Board decision also granted service connection for tinnitus. The Board’s review shows that this grant has not yet been implemented by the RO. Significantly, a June 2020 Rating Decision Codesheet continued to list tinnitus as a non-service connected disability and a September 2020 letter asked the Veteran to submit a claim for service connection for tinnitus on a proper form. The RO should immediately implement the March 2020 Board decision regarding the grant of service connection for tinnitus. Entitlement to aid and attendance allowance for the Veteran's spouse Under 38 C.F.R. § 3.351 (a)(2), SMC is payable to a Veteran by reason of the Veteran’s spouse being in need of aid and attendance. 38 U.S.C. §§ 1114, 1115. The March 2020 Board decision remanded the issue of on appeal in order to confirm whether the Veteran’s wife had passed away. The remand directives asked the RO to contact the Veteran for confirmation. A March 2020 letter asked the Veteran to contact VA regarding his appeal for aid and attendance for his spouse. The record is silent for any indication that the Veteran responded to the notification, however since that time a Social Security Administration report of death confirming that the Veteran’s spouse passed away in February 2019 has been added to the claim file. The Board therefore finds that there has been substantial compliance with the remand directives and will adjudicate the issue based on the evidence of record. The record shows that the Veteran’s spouse passed away on February [REDACTED], 2019. Thus, as of this date, the issue of aid and attendance is moot as the spouse was the individual upon which the claim of entitlement to an aid and attendance spousal allowance was based. The appeal is it pertains to the period after February [REDACTED], 2019 will therefore be dismissed as moot. The Board will therefore limit its analysis to whether SMC based on aid and attendance for the Veteran’s spouse is payable for the period prior to February [REDACTED], 2019. The statute authorizing such compensation states that a veteran must have a service-connected disability rated not less than 30 percent in order to qualify for the benefit. 38 U.S.C. § 1115. Here, that prerequisite is not met. As noted above, the RO has not yet implemented the March 2020 Board decision’s grant of service connection for tinnitus. However, the highest possible schedular rating for tinnitus is 10 percent. 38 C.F.R. § 4.87, DC 6260 (2017). The Board will therefore utilize a 10 percent rating for tinnitus in determining whether the Veteran met the 30 percent threshold during the period prior to February [REDACTED], 2019. During the relevant period, the Veteran is service connected for bilateral hearing loss, rated at 10 percent disabling, and tinnitus, which has a maximum rating of 10 percent. The combined rating for two disabilities rated at 10 percent each is 19 percent. 38 C.F.R. § 4.25. The Board therefore finds that the Veteran did not have a service-connected disability rated at 30 percent or higher during the period on appeal as required under 38 U.S.C. § 1115. Consequently, entitlement to SMC based on the need for regular aid and attendance for the Veteran’s spouse prior to February [REDACTED], 2019 must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.