Citation Nr: 21041660 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-01 366 DATE: July 9, 2021 ORDER Entitlement to special home adaptation grant is denied as moot. Entitlement to special monthly compensation (SMC) at the intermediate rate between (l) and (m) is granted. FINDINGS OF FACT 1. In an August 2020 rating decision, the Veteran was awarded entitlement to specially adapted housing, precluding a separate special home adaptation grant. 2. In addition to SMC (l), the Veteran has an independent 70 percent rating for posttraumatic stress disorder (PTSD), such that he meets the requirements for the intermediate rate between SMC (l) and (m). CONCLUSIONS OF LAW 1. The criteria for denial of the claim for entitlement to special home adaptation grant as moot have been satisfied. 38 U.S.C. § 2101; 38 C.F.R. § 3.809, 3.809a. 2. The criteria for SMC at the intermediate rate between (l) and (m) have been satisfied. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.151, 3.155, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1968 to December 1969, to include service in the Republic of Vietnam. His awards and decorations include the Purple Heart with one Oak Leaf Cluster, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Combat Infantryman Badge, among others. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in June 2019, where they were remanded for additional development, along with the separate issue of entitlement to specially adapted housing. As the specially adapted housing claim was granted by the RO after the Board's remand, it is no longer on appeal. 1. Entitlement to special home adaptation grant. A Veteran is eligible for assistance in the acquisition of housing with special features made necessary by the veteran's disability if he or she is entitled to compensation for a permanent and total service-connected disability that is due, in relevant part, to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; 38 U.S.C. § 2101 (a); 38 C.F.R. § 3.809(b). The Court has clarified that the qualifications for special home adaptation require that the individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. Jensen v. Shulkin, 29 Vet. App. 66, 79 (2017). Where entitlement to specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. This benefit requires that the evidence show permanent and total service-connected disability that either results in blindness in both eyes with 5/200 visual acuity or less or involves the anatomical loss or loss of use of both hands. 38 U.S.C. § 2101 (b); 38 C.F.R. § 3.809a. Here, however, and as noted previously, the Veteran's claim for specially adapted housing was granted by the RO in August 2020, subsequent to the Board's previous remand. As noted above, assistance under 38 U.S.C. § 2101(b) for a special home adaptation grant is warranted only where a veteran is not otherwise entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101(a). As the law precludes a separate award of special home adaptation grant under 38 U.S.C. § 2101(b), the claim must be denied as moot. 2. SMC at the intermediate rate between (l) and (m). 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. As it considers the interactive 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), with additional levels of SMC provided in 38 U.S.C. § 1114(l) through (t). Only the additional level pertinent to the Veteran's claim are discussed herein. In addition to the Veteran's previous claim for specially adapted housing, the aforementioned August 2020 rating decision also granted the claim for entitlement to SMC based on loss of use of the right lower extremity from July 30, 2012. The SMC rate payable under 38 U.S.C. § 1114(l) is warranted if the 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 with such significant disabilities as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b)(1)(4). Thus, as the Veteran is also service-connected for a left leg amputation, the RO assigned a level of SMC pursuant to 38 U.S.C. § 1114(l). In a June 2021 statement, the Veteran, through his representative, asserted that a higher rate of SMC should have also been awarded, specifically pursuant to 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3). 38 U.S.C. § 1114(p) allows for the assignment of either an intermediate rate or the next higher rate of SMC, even when a Veteran does not otherwise meet the criteria for that next higher rate. An intermediate rate is, essentially, "a half-step" increase in the level of SMC compensation being paid. The maximum allowable rate under subsection (p) is equivalent to the rate assigned under 38 U.S.C. § 1114(o). 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). An intermediate rate or the next higher rate of SMC may be assigned when certain conditions are met. When a Veteran is in receipt of one of the rates payable under 38 U.S.C. § 1114(l) through (n) and has an additional disability ratable at 50 percent or more, the next higher intermediate rate should be assigned. 38 C.F.R. § 3.350(f)(3). The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from those disabilities establishing entitlement to the SMC rating under 38 U.S.C. § 1114(l) through (n). Id. Here, the Veteran is separately in receipt of a 70 percent rating for an acquired psychiatric disorder, which was not used to afford the Veteran's SMC at the "l" rate. Accordingly, the Board finds that the Veteran is entitled to the next higher intermediate rate. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.