Citation Nr: 21007491 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-42 483 DATE: February 9, 2021 ORDER 1. 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 denied. 2. Entitlement to an effective date prior to February 3, 2014, for the payment of SMC at the “R-2 rate” under 38 U.S.C. § 1114(r)(2), is denied. 3. Entitlement to 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), is granted. FINDINGS OF FACT 1. Prior to February 3, 2014, the Veteran did not have loss of use of both lower extremities in combination with other service-connected disability of a nature and severity to satisfy the legal requirements for payment of compensation at the R-1 rate. 2. Prior to February 3, 2014, the Veteran did not have loss of use of both lower extremities in combination with other service-connected disability of a nature and severity to satisfy the legal requirements for payment of compensation at the R-2 rate. 3. The evidence shows that from September 27, 2007, it is as likely as not that the Veteran had loss of use of both feet. CONCLUSIONS OF LAW 1. The criteria for 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), are not met. 38 U.S.C. §§ 1114(o), (p), (r)(1), 5107(b), 5110; 38 C.F.R. §§ 3.350(h)(1), 3.400. 2. The criteria for an effective date prior to February 3, 2014, for the payment of SMC at the “R-2 rate” under 38 U.S.C. § 1114(r)(2), are not met. 38 U.S.C. §§ 1114(n), (o), (r)(2), 5107(b), 5110; 38 C.F.R. §§ 3.350(h)(2), 3.400. 3. 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), is warranted. 38 U.S.C. §§ 1114(l), 5107(b), 5110; 38 C.F.R. § 3.350(a)(2)(i), (b), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. The Veteran appeared at a May 2016 videoconference hearing before the undersigned. This case is also before the Board on appeal from a July 2016 rating decision, which granted SMC at the R-2 rate, effective June 30, 2015. 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 the case was remanded for evidentiary and due process development regarding both claims. 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. As for the appeal for an earlier effective date for payment of SMC at the R-2 rate, the appellant withdrew her request for a Board videoconference hearing. In August 2019, the case was remanded for additional development. In an October 2020 supplemental statement of the case and December 2020 rating decision, the RO granted an effective date of February 3, 2014 for SMC at both the R-1 and R-2 rates and granted an effective date of May 16, 2013 for service connection for loss of use of the feet. Effective Date SMC is an additional level of compensation paid to Veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. It reflects recognition by VA that certain disabilities, either alone or in combination, have an impact on a Veteran beyond the impairment of earning capacity which is central to the Rating Schedule. 38 C.F.R. § 4.1. Because it considers the synergistic effects of multiple disabilities, a determination of the correct SMC award level requires layering of different entitlements. Basic levels of SMC are listed at 38 U.S.C. § 1114(k), while additional levels of SMC are provided in 38 U.S.C. § 1114(l), (m), (n), (o), (p), (r), (s), and (t). The pertinent provisions here will be discussed in detail below. The effective date for an award of compensation based on aid and attendance (A&A) and housebound benefits, except as provided in 38 C.F.R. § 3.400(o)(2), is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.401. However, when an award of compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional compensation payable by reason of need for A&A or housebound status shall also be awarded for any part of the award’s retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.401. 1. and 2. 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), and for the payment of SMC at the “R-2 rate” under 38 U.S.C. § 1114(r)(2), is denied. 3. Entitlement to an effective date prior to May 16, 2013 (i.e., May 27, 2007), for the payment of SMC based on loss of use of both feet under 38 U.S.C. § 1114(l), is granted. For the SMC award, the appellant seeks (as had the Veteran previously) an effective date of September 27, 2007, which constitutes the earliest effective date assigned for any service-connected disability as well as the earliest effective date assigned for any rate of SMC in this case. Historically, the June 2015 rating decision on appeal granted, among other things, service connection for diabetes mellitus, type 2, and awarded SMC (at the S-1 rate), both effective from September 27, 2007. A September 2015 rating decision granted service connection for loss of use of both feet (claimed as peripheral neuropathy), secondary to diabetes mellitus, effective June 30, 2015, based on the facts found or shown from VA treatment records; it also awarded SMC at the R-1 rate, effective June 30, 2015. Such decisions were made during the pendency of the Veteran’s appeal concerning various effective date and SMC assignments (as addressed in a September 2015 statement of the case, before he limited the scope of the appeal in his November 2015 VA Form 9, substantive appeal). A July 2016 rating decision awarded a higher level of SMC at the R-2 rate, effective June 30, 2015, because the criteria for such were met from that date. More recently, an October 2020 supplemental statement of the case and a December 2020 rating decision granted an effective date of May 16, 2013 for the award of service connection for loss of use of the feet, which prompted the award of an effective date of February 3, 2014 for SMC at both the R-1 and R-2 rates (because the Veteran met the criteria for such awards considering other disabilities in effect beginning February 3, 2014, including loss of bowel and bladder control). Therefore, the Board will consider assignment of an effective date for the award of SMC at the R-1 and R-2 rates from any date from September 27, 2007 (the earliest effective date of service connection for a disability or SMC entitlement in this case) to February 3, 2014 (the effective date currently assigned for the award of SMC at the R-1 and R-2 rates). The appellant does not contend, and the record does not reflect, that a formal or informal claim for SMC was received prior to September 27, 2007. The criteria for the various SMC provisions that may serve as predicate foundations for SMC at the R-1 and R-2 rates generally involve combinations of deafness, blindness, and loss of use of upper and/or lower extremities. See 38 U.S.C. § 1114(n), (o), (p). The contentions in this case, as discussed at the May 2016 Board hearing, exclusively concern the Veteran’s loss of use of the lower extremities due to his service-connected disabilities. It has not been argued that his vision or hearing loss were more disabling than reflected by the ratings assigned, nor is it alleged that his vision and hearing loss otherwise met the criteria for the award of SMC at the R-1 or R-2 rate prior to February 3, 2014. The appellant has not raised any other theories of entitlement to an effective date prior to February 3, 2014, for SMC at the R-1 or R-2 rate in this case. The Board proceeds to address whether it is shown by the record that at any time from September 27, 2007 to February 3, 2014, the Veteran had loss of use of both of his feet or lower extremities. For VA SMC entitlement purposes, loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2)(i). The determination is made on the basis of actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. Id. The regulations further provide that extremely unfavorable complete ankylosis of a knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the foot involved; complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. Id. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). After applying the pertinent regulations to the facts of this case and considering the benefit of the doubt rule, the Board finds that the Veteran had lost the use of both of his feet or lower extremities due to service-connected disability for the entirety of the appeal period, i.e., from September 27, 2007. Accordingly, an effective date earlier than May 16, 2013 for SMC under 38 U.S.C. § 1114(l) is warranted. However, the Board also finds, for reasons that will be discussed in separate sections below, that an effective date prior to February 3, 2014 for SMC under 38 U.S.C. § 1114(r) is not warranted. For the period under consideration, there is an abundance of records reflecting varying degrees of loss of function of the Veteran’s lower extremities. The Board will initially address medical evidence indicative of any functional loss. An August 2007 VA treatment record notes the Veteran was ambulatory. A November 2007 VA treatment record notes he reported he was working, laying floor. A January 2008 treatment record notes he ambulated with a steady, upright gait. A September 2010 VA treatment record notes he walked normally. An October 2010 note notes he was ambulatory, but that a diabetic foot exam was abnormal. (A right dorsalis pedis pulse was absent. It was rated as 1/4 on the left. Sensation was absent at the first and fifth toes on the right foot and intact at all locations on the left foot.) He was noted to be ambulatory in February 2011. A February 2013 VA emergency department note indicates he sought treatment for shortness of breath, intermittent confusion and weakness, and that he was ambulatory. A separate February 2013 treatment record notes that his daughter transported him by wheelchair and reported that he could barely walk. He was unsteady on his feet because he felt lightheaded and weak but was noted to be normally very active. He reported he was renovating his daughter’s bedroom. Pneumonia and coronary artery disease were diagnosed. A treatment record from later in February 2013 notes his extremities had good distal pulses. He was transported to the hospital by wheelchair again in March 2013, and a nursing note indicates he was ambulatory. A May 2013 treatment record notes he reported he tripped over his shoelace and fell into a chair while walking. A separate May 2013 note indicates he ambulated by himself. Later that month, he fell walking to a bathroom at the hospital; he reported loss of consciousness. VA treatment records in June 2013 show he was readmitted to the hospital in a coma. He was noted to have experienced deconditioning due to the hospital stays. He regained full weight-bearing capability but only of one-minute duration. He walked short distances. A June 2013 private hospital admission evaluation report notes the Veteran had bilateral lower extremity weakness. He was using a wheelchair and walker, but did not have weight-bearing limitations, loss of voluntary movement, paralysis, or a limitation of motion. A pain risk assessment noted he experienced pain, but the location was not noted. He was noted to require use of an assistive device for ambulation. A physical therapy evaluation report noted he had decreased lower extremity strength, a reduced ability to safely ambulate, an abnormal gait with inadequate knee extension and knee wobble, decreased strength, reduced balance, and reduced functional activity tolerance. Yet, he was able to ambulate without assistance. His lower extremity muscle tone was normal, and he reported not having pain. Separate July 2013 treatment records note that the Veteran was walking on his own and presented as ambulatory. A July 2013 report of an examination for housebound status or permanent need for regular A&A, completed by a treating VA physician, indicates that the Veteran was not confined to bed, that his gait was steady, that his appearance was well-kept, and that he had good posture. The physician also noted aids such as canes, braces, crutches, or the assistance of another person were not required for locomotion. A December 2013 VA treatment record notes the Veteran’s daughter reported he had dark marks on his feet that were bothering him. A treatment record notes he was able to ambulate independently. A December 2013 podiatry consultation report notes that he complained of great toe joint pain, and that the pain during ambulation had persisted for several months. On evaluation, protective sensation was intact bilaterally, strength was 5/5 in all planes, and bilateral hallux limitus was assessed. A January 2014 prosthetics request notes a provisional diagnosis of foot pain. A February 2014 treatment record notes the Veteran’s daughter reported he had difficulty with balance or walking and had frequent falls. He was able to walk a block without stopping and seldom used his walker outside the house. In April 2014, another report of examination for housebound status or permanent need for regular A&A, completed by a VA physician, indicates that his gait was fair, that his daughter reported he had poor balance and frequently fell, and that he required a cane or walker to ambulate one block. A March 2014 VA treatment record notes the Veteran complained of bilateral calf pain that was worse at night. VA treatment records in September 2014 indicate he had been recently discharged from the hospital. He was ambulatory, but still felt a bit wobbly. He had full weight-bearing capability and was able to walk 100 to 200 feet independently. Treatment records in October 2014 note his daughter reported he had fallen. He walked in complaining of left knee pain. A separate note indicates he was ambulatory, and a physician recommended use of a wheelchair to avoid falls. An October 2014 physical therapy letter notes he demonstrated moderate independence and was issued a walker. He fell again in November 2014. A December 2014 treatment record notes he had an abnormal gait, stance, and ambulation. A January 2015 treatment record notes he was ambulatory with a cane. In a January 2015 letter, a private physician, Dr. CB, reported the Veteran was unstable on his feet and should only use a wheelchair [for mobility]. He opined the Veteran had lost the use of his legs secondary to diabetes, pneumonia, and anoxia. VA medical reports in March 2015 describe the Veteran as “Fully Ambulatory,” “[a]mbulating independently around the unit w/o assist,” “ambulatory with cane,” “ambulatory with cane and walker,” and “[a]mbulatory with assist.” One report notes muscle strength was normal in all extremities, sensation was grossly intact, and that he ambulated without assistance to bathroom with a steady gait. A June 2015 VA treatment record notes he complained of bilateral foot pain. In a June 30, 2015 letter, a treating VA nurse practitioner noted he had an unsteady gait and lower extremity weakness with multiple falls, requiring supervision and assistance at all times. A treatment note that day indicates he fell three times a week if not supervised due to peripheral neuropathy and general leg weakness. He needed assistance with ambulation from one room to another with a walker. In a letter received in November 2015, private Dr. CB noted the appellant bought the Veteran a wheelchair in 2006. In an April 2016 letter, the Veteran’s treating VA physician noted that he had treated the Veteran for 15 years, the last 8 of which he had required use of a wheelchair due to progression of his service-connected disabilities. In a May 2016 letter, the same VA treating physician reported that the Veteran began to experience unsteadiness in 2007 due a combination of the effects of medications used to treat the service-connected cancers and diabetic neuropathy, and that such effects “resulted in the loss of normal use of his lower extremities and the need for a wheelchair for the past 9 years.” In a May 2016 letter, private Dr. CB asserted that June 2013 VA treatment records that document an episode of aspiration suggest a loss of use of both feet due to peripheral neuropathy and anoxia, and that an April 2014 examination report also suggested a loss of use of both feet. In the September 2016 JMR, the parties agreed that the Board failed to consider whether the Veteran’s reported lower extremity pain resulted in sufficient functional loss, so that remaining function could be accomplished equally well by an amputation stump with prosthesis. An advisory medical opinion was sought. In a November 2017 opinion, a VA orthopedic surgeon summarized the evidence in detail and concluded that the Veteran was not shown to have loss of use of both lower extremities prior to June 30, 2015, noting there was no concrete evidence of a loss of function that would have kept him from being able to walk with a walker or wheelchair prior to then. He explained that while the record documented that the Veteran had bilateral peripheral neuropathy, the impact of pain on his ability to function was not consistent with loss of use of the lower extremities. He also noted Dr. CB did not provide direct care of the Veteran and also based his opinions on a review of the medical records. Relative to the lay evidence indicative of any functional loss of the Veteran’s lower extremities concerning the period in question, the appellant reported in a December 2008 letter that he had been permanently disabled since 2000. In a statement received in February 2014, the Veteran reported he had to learn how to walk and get strength from mid-June 2013 to early-July 2013. In a July 2015 letter, the Veteran’s son-in-law reported he had helped treat the Veteran for 10 years and that he could not stand or walk and was constantly falling. In a November 2015 statement, the appellant asserted the Veteran was unable to walk by July 2005 and began to fall frequently; she noted he was still driving in 2006. In a November 2015 statement, his niece reported he had been in a wheelchair since 2006. At the May 2016 Board hearing, the appellant testified that she had cared for the Veteran since 2006 and that he began using a wheelchair in April 2006. She reported he used the wheelchair because he could not use his legs and could not walk. Dr. CB reported that he reviewed the Veteran’s VA treatment records, and opined that they supported he had loss of use of his lower extremities following a stroke in June 2013. In the January 2019 JMR, the parties agreed, among other things, that the November 2017 VA examiner did not explain how the Veteran’s ambulation behind a walker or wheelchair would not be equivalent to the functional impairment of amputation. Another advisory medical opinion was sought. In an August 2020 VA opinion, a consulting orthopedic surgeon summarized the evidence in detail and considered the question of the actual remaining bilateral lower extremity function including balance and propulsion for the relevant period. He stated that there was unfortunately a lack of actual functional capacity evaluations, which could be used to ascertain whether the Veteran’s ambulatory status was equivalent to ambulating with a prosthesis, for the period at issue. He noted that the records show the Veteran was capable of ambulating by himself for short distances, with use of an assistive aid, probably with varying amounts of foot pain. He reviewed the medical records and noted that the objective data supported the contention that the Veteran was functionally disabled in the lower extremities such that he would have been just as likely as not equally functioning should he have undergone amputations of the lower extremities with use of a prosthesis, “at least as far back as May 2013.” However, he also reviewed the multiple testimonies of caregivers and specifically agreed with statements of the Veteran’s VA treatment provider. He explained the fact that some records show the Veteran could ambulate did not “negate” the opinion that the “capacity to ambulate” was at least as likely as not equal to that which would be served by bilateral leg amputations with use of prosthesis. The consulting provider’s ultimate conclusion was that the Veteran’s “capacity to ambulate from period of June 2007-September 2015 [sic] was and would have been at least as likely as not equally served by bilateral lower extremity amputations with use of appropriate prosthesis.” As shown above, there is evidence both favorable and unfavorable to the claim that the Veteran had loss of use of both lower extremities from September 2007, as alleged. In light of the August 2020 opinion that considered both medical and lay evidence, the Board concludes that SMC based on loss of use of both feet under 38 U.S.C. § 1114(l) is warranted from September 27, 2007. In that regard, it is noted that 38 U.S.C. § 1114(l) is payable where a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot; or is blind in both eyes, with 5/200 visual acuity or less; or is permanently bedridden or so helpless as to be in need of the regular aid and attendance of another person. 38 C.F.R. § 3.350(b) (emphasis added). As noted, the payment of SMC based on loss of use of both feet is equivalent to that of SMC based on the need for the regular A&A of another person. The appellant has argued that since September 2007 not only had the Veteran needed the constant care and assistance she provided him, but that he also had required the higher level of care (special A&A benefits) contemplated under 38 U.S.C. § 1114(r). At present, the record shows that SMC at the R-1 and R-2 rates were effective from February 3, 2014. After reviewing the record, the Board finds the Veteran was not shown to have met the criteria for payment of SMC under 38 U.S.C. § 1114(r) prior to February 3, 2014, and an earlier effective date for SMC at both the R-1 and R-2 rates is not warranted. SMC at the R-1 Rate Under 38 U.S.C. § 1114(r)(1), a veteran receiving the maximum rate under 38 U.S.C. § 1114(o) or (p) who is in need of regular A&A or a higher level of care is entitled to an additional allowance during periods that he or she is not hospitalized at United States Government expense. The regular or higher-level A&A allowance is payable whether or not the need for regular A&A or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C. § 1114(o) or (p) or was based on an independent factual determination. 38 C.F.R. § 3.350(h)(1). Service connection was in effect for the following 16 disabilities: (1) squamous cell carcinoma of the lung to include chronic pneumonia, rated 100 percent from September 27, 2007; (2) recurrent carcinoma of the larynx, status post total laryngectomy with neck dissection, aphonia, and dysphagia, rated 100 percent from September 27, 2007; (3) non-Hodgkin’s lymphoma with anemia and thrombocytopenia, rated 100 percent from May 21, 2010; (4) loss of use of the bilateral feet, previously rated 100 percent from May 16, 2013 but per this decision rated 100 percent from September 27, 2007; (5) coronary artery disease, rated 100 percent from February 3, 2014; (6) cognitive impairment due to anoxic encephalopathy associated with coronary artery disease, status post old myocardial infarction, rated 100 percent from February 3, 2014; (7) anoxic encephalopathy with residual bladder incontinence associated with coronary artery disease, rated 40 percent from February 3, 2014; (8) anoxic encephalopathy with residual bowel incontinence associated with coronary artery disease, rated 60 percent from February 3, 2014; (9) diabetes mellitus, type 2, rated 20 percent from September 27, 2007; (10) bilateral diabetic retinopathy, cataract with pseudophakia, glaucoma associated with diabetes mellitus, rated 20 percent from September 27, 2007; (11) tinnitus associated with diabetes mellitus, rated 10 percent from September 27, 2007; (12) peripheral neuropathy of the right upper extremity associated with diabetes mellitus, rated 10 percent from June 23, 2015; (13) peripheral neuropathy of the left upper extremity associated with diabetes mellitus, rated 10 percent from June 23, 2015; (14) bilateral hearing loss associated with diabetes mellitus, rated noncompensable from September 27, 2007; (15) tinea cruris, rated noncompensable from May 21, 2010; and (16) skin infections, bilateral forearm cellulitis associated with diabetes mellitus, rated noncompensable from February 3, 2015. As noted above, for payment of SMC at the R-1 rate, which essentially constitutes a special A&A, the Veteran must be in receipt of the maximum rate under 38 U.S.C. § 1114(o) or (p). However, even with the retroactive grant of an effective date (from May 16, 2013 to September 27, 2007), for the loss of use of both feet awarded in this decision, the criteria for SMC at the R-1 rate were not met prior to February 3, 2014. SMC at the 38 U.S.C. § 1114(o) level provides higher levels of compensation for various combinations of disabilities. Pertinent to the case at hand, it is warranted if the Veteran had suffered paralysis of both lower extremities together with loss of anal and bladder sphincter control (through a combination of loss of use of both legs and helplessness); or, had disability which would entitled him to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114(l) through (n). 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii), (2). For combinations, determinations under this section must be based upon separate and distinct disabilities. That requires, for example, that where a veteran who has loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities (with loss of use). If the loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities be taken as entitling the Veteran to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e)(3). SMC at the 38 U.S.C. § 1114(p) level provides whole or half steps of increased SMC depending on the combination of disabilities shown, with the maximum SMC not exceeding that prescribed at the 38 U.S.C. § 1114(o) rate. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). Here, through the combination of the loss of use of both feet (effective September 27, 2007) with his service-connected bowel and bladder incontinence (effective February 3, 2014), the Veteran was entitled to SMC under 38 U.S.C. § 1114(o) no earlier than February 3, 2014. Moreover, he did not have a combination of disabilities that would entitle him to two or more of the rates, with no condition being considered twice, as provided in 38 U.S.C. § 1114(l) through (n). From September 27, 2007, his combination of disabilities (including complete organic aphonia with constant inability to communicate by speech and squamous cell carcinoma of the lung and carcinoma of the larynx) entitled him to SMC under both 38 U.S.C. § 1114(k) and (s). And while he was entitled to two rates of SMC under 38 U.S.C. § 1114(l) – i.e., based on loss of use of both feet and on account of being so helpless as to need the regular A&A of another person – this combination did not involve separate and distinct disabilities because the A&A was based in part on need resulting from the loss of use of two extremities. He also does not meet the criteria provided for SMC under 38 U.S.C. § 1114(m) or (n), which contemplate combinations of disabilities that are not applicable to the Veteran. Likewise, prior to February 3, 2014, the Veteran was not entitled to the maximum rate under 38 U.S.C. § 1114(p), which provides for combinations of disabilities that are inapplicable to him. SMC at the R-2 Rate Under 38 U.S.C. § 1114(r)(2), a veteran receiving compensation at the intermediate rate between 38 U.S.C. § 1114(n) and (o) plus SMC under 38 U.S.C. § 1114(k) who establishes a factual need for regular A&A or a higher level of care, is also entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. 38 C.F.R. § 3.350(h)(2). The amount of the additional allowance payable to a veteran in need of regular A&A is specified in 38 U.S.C. § 1114(r)(1). The amount of the additional allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C. § 1114(r)(2). The higher-level A&A allowance authorized by 38 U.S.C. § 1114(r)(2) is payable in lieu of the regular A&A allowance authorized by 38 U.S.C. § 1114(r)(1). 38 C.F.R. § 3.350(h)(3). As discussed above, prior to February 3, 2014, the Veteran is not entitled to the special A&A of SMC at the R-1 rate. SMC at the R-2 rate is essentially a higher level of special A&A. The appellant has provided statements and testimony regarding the extent of daily care the Veteran required since September 27, 2007, to include some care that required a degree of medical training or oversight to administer (e.g., changing a tracheostomy tube). Further, he was entitled to SMC under 38 U.S.C. § 1114(k) since September 27, 2007. Nevertheless, he was not entitled to SMC under 38 U.S.C. § 1114(o) prior to February 3, 2014, nor was he in receipt of compensation at the intermediate rate between 38 U.S.C. § 1114(n) and (o). Therefore, the criteria for SMC at the R-2 rate were not met prior to February 3, 2014 are not met, and the appeal in the matter must be denied. 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.