Citation Nr: 21023577
Decision Date: 04/21/21	Archive Date: 04/21/21

DOCKET NO. 20-11 188
DATE: April 21, 2021

REMANDED

Entitlement to special monthly compensation (SMC), to include SMC based on a need for aid and attendance, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1954 to July 1958 and from November 1990 to May 1991.  The Veteran died in February 2015, and VA granted his surviving spouse substitution in May 2016.  

In a May 2016 rating decision, VA granted entitlement to service connection for lung disease with an evaluation of 100 percent effective December 18, 2012.  VA mailed notice of the decision to the appellant in June 2016.  VA received a timely Notice of Disagreement with the decision in June 2017.  VA requested clarification as to what the appellant was appealing for, and the Veteran’s attorney clarified in a June 2017 letter and a September 2017 Notice of Disagreement that the appellant is seeking an award of special monthly compensation to include aid and attendance. 

In an August 2017 letter, VA rejected the Notice of Disagreement on the basis that it had already awarded the highest evaluation possible for lung disease.  While VA indicated that the SMC claim needed to be filed separately, the Veteran’s attorney noted on the March 2020 Appeal to Board of Veterans’ Appeals that under Payne v. Wilkie, 31 Vet. App. 373, 383 (2019), special monthly compensation falls within the scope of an appeal of a disability rating.  In light of Payne, the agency of original jurisdiction (AOJ) should issue a statement of the case regarding special monthly compensation. 

The Board REMANDS for the following actions:

The AOJ should send the appellant and her representative a statement of the case that addresses the appellant’s claims for special monthly compensation raised in association with the deceased Veteran’s claim for compensation for a respiratory disability.  If the appellant perfects an appeal by submitting a timely VA Form 9, VA should return the issue to the Board for further appellate consideration.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Michael Duffy, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.