Citation Nr: 21040627
Decision Date: 07/06/21	Archive Date: 07/06/21

DOCKET NO. 15-15 265
DATE: July 6, 2021

ORDER

A special monthly compensation (SMC) based on aid and attendance status is dismissed.

FINDING OF FACT

A September 2020 rating decision granted the Veteran's claim of entitlement to SMC based on the factual need of aid and attendance.

CONCLUSION OF LAW

There being no justiciable case or controversy, the issue of entitlement to SMC 

is moot and is dismissed. 38 U.S.C. § 7105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1975 to September 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been before the Board previously. In July 2018 the Board remanded the issue on appeal for further development, including, but not limited to, the scheduling of a VA aid and attendance/housebound examination. 

In February 2020 the Board noted that the Agency of Original Jurisdiction (AOJ) provided the Veteran with VA examinations for housebound status or permanent need for regular aid and attendance in October 2019 and January 2020. However, the AOJ had not readjudicated the Veteran's claim since the VA examinations; therefore, the Board in February 2020 directed the AOJ to readjudicate the Veteran's claim giving consideration to all evidence currently of record. 

After the Board's 2020 remand, a September 2020 rating decision granted entitlement to SMC, effective June 11, 2013.  This rating decision stated that the effective date corresponds to the date the Veteran's claim for aid and attendance and housebound was received and that he is to be paid aid and attendance as this is the higher benefit. As the higher benefit of SMC based on aid and attendance was award, SMC based on housebound is moot. A September 29, 2020 notification letter informed the Veteran of this decision and provided notification of appellate rights. The Board finds this to be a full grant of the benefit sought on appeal that was the subject of 2018 and 2020 Board remands.

Subsequently, the AOJ, in an October 2020 rating decision, on its own proposed to discontinue SMC based on a clear and unmistakable error.  This proposed rating decision states that the Veteran does not have a schedular 100 percent evaluation which is required for entitlement to aid and attendance/housebound. The record does not reflect that final action was taken to effectuate the proposed discontinuation of SMC.  

Curiously, a March 2021 Supplemental Statement of the Case adjudicated SMC on an extraschedular basis. The file was then returned to the Board and re-docketed.  

Based upon the foregoing, the Board finds that the Veteran no longer has an issue on appeal with respect to the issue of entitlement to SMC as this matter was in fact granted and the file does not reflect that the proposed reduction became effective. Accordingly, there is no justiciable case or controversy regarding such issue currently before the Board as contemplated by 38 U.S.C. §§ 7104, 7105, 7107. Consequently, in the absence of any justiciable question, the appeal as to the issue of entitlement to SMC is dismissed.  

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.F., Associate 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.