Citation Nr: 21024572 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-38 581 DATE: April 23, 2021 ORDER Entitlement to special monthly compensation (SMC) paid at a rate higher than the amount paid under 38 § U.S.C. 1114(l) is denied. FINDING OF FACT The probative evidence of record does not show the Veteran experienced any other disabilities or symptoms that would warrant a higher level of SMC. CONCLUSION OF LAW The criteria for SMC paid at a rate higher than the amount paid under 38 § U.S.C. 1114(l) have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1977. The Veteran testified at a Board of Veterans’ Appeals (Board) hearing at the local Regional Office (RO) before the undersigned Veterans Law Judge in July 2019. A transcript of the hearing has been associated with the record. In November 2019, this matter was remanded for further development. Indeed, additional records came in without a waiver of initial RO review. The Board observes, the RO ordered a contemporaneous VA examination, as the Veteran indicated his disabilities had increased in severity. The examination was cancelled in January 2021 per the Veteran’s request and he indicated he wanted to withdraw his claim. The RO sent the Veteran notification in January 2021 as to how he could legally withdraw his claim, however he has not responded. As such, the Board will adjudicate this issue and will consider the evidence of record. 1. Entitlement to SMC paid at a rate higher than the amount paid under 38 § U.S.C. 1114(l) SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of the Veteran’s service-connected disabilities. The Veteran is service connected for PTSD, lumbar spine disability and hypertension. The Veteran’s PTSD is currently rated at a 100 percent disability rating, his lumbar spine disability is currently rated at a 60 percent disability rating, and his hypertension is currently rated at a 10 percent rating. As a result, the Veteran was awarded SMC at the (s) from September 27, 2004 based on having one disability rated at 100 percent and other disabilities reaching 60 percent. 38 U.S.C. § 1114(s). Special monthly compensation is payable if, as the result of service-connected disabilities, the Veteran is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The evidence shows the Veteran is receiving SMC under § 1114(l) from October 17. 2011 because he is so helpless as to be in need of regular aid and attendance. SMC under 38 U.S.C. § 1114 (m) is warranted if the Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such Veteran so helpless as to be in need of regular aid and attendance. SMC at the 38 U.S.C. § 1114 (n) level is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss of use of both arms at levels, or with complications, preventing elbow action with prostheses in place, has suffered the anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances. SMC at the 38 U.S.C. § 1114 (n) level is also warranted if the Veteran’s service-connected disability has caused him to suffer anatomical loss of one arm and one leg so near the shoulder and hip as to prevent the use of prosthetic appliances, or to suffer blindness without light perception in both eyes. SMC provided by 38 U.S.C. § 1114 (o) is payable for multiple conditions, including paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle a claimant to the maximum rate under 38 U.S.C. § 1114 (o), through the combination of loss of use of both legs and helplessness. As noted above, a contemporaneous VA examination was ordered as the Veteran reported his condition had increased in severity. The examination was cancelled in January 2021 per the Veteran’s request and he indicated he wanted to withdraw his claim. The RO sent the Veteran notification in January 2021 as to how he could legally withdraw his claim, however he has not responded. Based upon review of the evidence of record, the Veteran does not have paralysis or the anatomical loss of his feet or hands, or experienced blindness that would warrant entitlement to a higher level of SMC at any time during the appeal period, nor has he so contended. The Board has considered the Veteran’s statements and testimony concerning his deteriorating mental and physical health. The Board is sympathetic to the Veteran. A preponderance of the evidence, however, does not demonstrate that his symptoms, due to his service-connected disabilities, alone, warrant a higher SMC award, for the reasons and bases that have been discussed. To the contrary, the preponderance of the evidence is against an award of SMC in excess of what he is currently receiving. Consequently, the appeal is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.