Citation Nr: 21030657 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-46 700A DATE: May 19, 2021 ORDER Entitlement to increased special monthly compensation (SMC) under 38 U.S.C. § 1114 (r)(2) based on the need for a higher level of regular aid and attendance is denied. FINDING OF FACT There is no need for personal health-care services provided on a daily basis in the home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. CONCLUSION OF LAW The criteria for a higher level of SMC based on the need for additional aid and attendance have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from May 1989 to April 1995. This matter is on appeal from a March 2014 rating decision. The Board finds that the duties to notify and assist the Veteran in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. The attorney has argued that the case is not ready for appellate review because the issue of whether the Veteran was entitled to increased SMC at the (r)(2) was not previously adjudicated in an initial rating decision accompanied by notice and appeal rights, and the March 2021 Supplemental Statement of the Case cannot be used to adjudicate an issue that has never previously been by the Agency of Original Jurisdiction (AOJ); however, the appeal for increased SMC is essentially an appeal for an increased rating, and the Veteran has pursued and perfected his appeal for increased SMC, which demonstrates actual knowledge of having received notice of the March 2014 rating decision and his appeal rights. During the course of the appeal, in July 2016 and September 2020 rating decisions, higher rates of SMC were awarded. It was not until issuance of the September 2020 rating decision that consideration of the question of whether increased SMC at the R-2 rate was warranted; therefore, the issuance of the March 2021 adjudicating the issue is sufficient because the question of whether increased SMC at the R-2 rate is included in the broader increased rating appeal i.e., the issue of whether increased SMC based on the need for a higher level of aid and attendance is warranted. Consequently, the Veteran has been provided with all appropriate due process, and there is no prejudice to the Veteran in proceeding with appellate review. Increased SMC Legal Authority and Analysis 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. See 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. Basic levels of SMC are listed at 38 U.S.C. § 1114 (k). Higher levels of SMC are provided at 38 U.S.C. § 1114 and the subsections following subsection (k). Service connection is in effect for the following disabilities: arteriovenous malformation, postoperative times 2 with left hemiplegia and left inferior quadrantanopsia; major neurocognitive disorder due to vascular disease with behavior disturbance and adjustment disorder with mixed anxiety and depressed mood, chronic; hemianopsia, affecting the left eye, cerebral vascular accident affecting right eye; intervertebral disc syndrome, L5-S1; and residual scar from craniotomies. The Veteran is currently in receipt of SMC (L-1) for being so helpless so as to need regular aid and attendance, SMC (M-2) for loss of use of one leg at a level or with complications preventing natural knee action with prosthesis in place and the loss of use of the other leg at a level or with complications preventing natural elbow action with prosthesis in place, SMC (O-3) for arteriovenous malformation, postoperative times 2 with left hemiplegia and left inferior quadrantanopsia; and SMC (R-1) for the need of regular aid and attendance from November 19, 2013. There are two parts to SMC(r): there is special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is discussed in (r)(2). See 38 U.S.C. § 1114 (r); 38 C.F.R. §§ 3.350 (h), 3.352. To be awarded SMC (r)(1), under 38 U.S.C. § 1114, a veteran must be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). The veteran must also be in need of regular aid and attendance. See 38 U.S.C. § 1114(r). The Veteran appeals for a higher level of aid and attendance at the SMC (R-2) rate. For SMC(r)(2), once the aforementioned threshold is met, a veteran must show that, in addition to the need for regular aid and attendance, he or she is in need a higher level of care as specified. See 38 U.S.C. § 1114(r)(2). The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance 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). Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in a veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. 38 C.F.R. § 3.352(b)(2). The term "under the regular supervision of a licensed health-care professional" means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. 38 C.F.R. § 3.352(b)(3). A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. 38 C.F.R. § 3.352(b)(4). Moreover, the provisions of 38 C.F.R. § 3.352 (b) are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the need is clearly established, and the amount of services required on a daily basis is substantial. 38 C.F.R. § 3.352(b)(5). The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). The question at issue in this case is whether the Veteran in this case is entitled to additional compensation for aid and attendance based on 38 U.S.C. § 1114(r)(2). There are two parts to subsection (r): special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is discussed in (r)(2), which includes the need for hospitalization, nursing home care, or other residential institutional care. 38 U.S.C. § 1114(r); 38 CFR §§ 3.350(h), 3.352. Both parts are prefaced by the requirements that a veteran be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). 38 U.S.C. § 1114 (r). After review of the record, the Board finds that the criteria for increased SMC based on the need for a higher level of regular aid and attendance are not met. For the entire rating period, the evidence shows no need for personal health-care services provided on a daily basis in the Veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional so as to warrant increased SMC based on the need for a higher level aid and attendance. (Continued on the next page) While the evidence shows that the Veteran needs regular aid and attendance of another person, the regular care is provided by the Veteran's spouse who is not a licensed health care professional and is not under the regular supervision of a licensed health care professional. The level of aid and attendance needed by the Veteran is not so substantial as to require hospitalization, nursing home care, or other residential institutional care but for the daily care provided by the spouse, so is adequately contemplated by the SMC at the (R-1) rate. For these reasons, the Board finds that entitlement to increased SMC based on a higher need for aid and attendance is denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.