Citation Nr: 21042309 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 20-13 314 DATE: July 12, 2021 ORDER Entitlement to an effective date prior to February 23, 2018 for the award of a temporary total rating for back surgery requiring convalescence is denied. Entitlement to an effective date prior to February 23, 2018 for the award of special monthly compensation (SMC) at the housebound rate is denied. Entitlement to an increased rate of SMC from February 23, 2018 to June 1, 2018 is denied. FINDINGS OF FACT 1. The Veteran underwent a surgery for his service-connected back disability on February 23, 2018, necessitating convalescence. 2. Prior to February 23, 2018, the Veteran did not have a single service-connected disability rated 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent or more, and he was not permanently housebound by reason of his service-connected disabilities. 3. From February 23, 2018 to June 1, 2018, the Veteran's service-connected disabilities did not require regular aid and attendance or a higher level of care, and he has not been service-connected for blindness, deafness, anatomical loss of any of his extremities, loss of use of any of his extremities, or residuals of a traumatic brain injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to February 23, 2018 for the award of a temporary total rating for back surgery requiring convalescence are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.30. 2. The criteria for entitlement to an effective date prior to February 23, 2018 for the award of SMC at the housebound rate are not met. 38 U.S.C. §§ 1114(s), 5110; 38 C.F.R. §§ 3.400, 3.350. 3. The criteria for entitlement to an increased rate of SMC from February 23, 2018 to June 1, 2018 are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of a VA Regional Office (RO). The Board remanded the claims on appeal in May 2020 and April 2021. Earlier Effective Dates Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 1. Entitlement to an effective date prior to February 23, 2018 for the award of a temporary total rating for back surgery requiring convalescence is denied. A temporary total rating is assigned effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release, if the treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. See 38 C.F.R. § 4.30. The record shows that the Veteran underwent a minimally invasive right extreme lateral approach to the lumbar spine followed by L2-L3 and L3-L4 discectomies with L2-L3 and L3-L4 arthrodesis with insertion of interbody fusion devices, followed by minimally invasive bilateral L2-L4 posterolateral fusion with instrumentation on February 23, 2018. The April 2018 rating decision on appeal awarded a temporary total evaluation based on surgery necessitating convalescence and an effective date of February 23, 2018 was assigned, noting that was the date the Veteran underwent back surgery. VA regulations specifically provide that the effective date for a temporary total rating cannot begin prior to the date of "hospital admission or outpatient treatment." 38 C.F.R. § 4.30. Here, the date of hospital admission for his back surgery was on February 23, 2018. Thus, the RO assigned the correct effective date of February 23, 2018 for the award of a temporary total rating. The Board emphasizes that the Veteran does not assert, and the evidence does not otherwise reflect, that he had back surgery prior to February 23, 2018. Although the Veteran received treatment for his back disability prior to that date, the evidence does not reflect that his back was immobilized by cast, without surgery. Therefore, the Veteran is already in receipt of the earliest possible effective date allowed under law and there is no legal basis to establish an earlier effective date. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Accordingly, entitlement to an effective date prior to February 23, 2018 for the award of a temporary total rating for back surgery requiring convalescence is denied. 2. Entitlement to an effective date prior to February 23, 2018 for the award of SMC at the housebound rate is denied. In the April 2018 rating decision on appeal, the Veteran was awarded SMC based on housebound criteria being met, effective February 23, 2018, on the basis of a service-connected disability rated as total (back disability) and an additional service-connected disability (right knee total arthroplasty) independently rated at over 60 percent. SMC is payable if a veteran has a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities, which is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Here, the Board finds that there is no basis upon which to award an effective date prior to February 23, 2018 for the award of SMC at the housebound rate. Prior to February 23, 2018, the Veteran was not rated as total for one disability and at 60 percent or more for an additional disability. 38 U.S.C. § 1114(s). Although the Veteran was in receipt of a total rating for right knee total arthroplasty under Diagnostic Code 5055 from June 28, 2011 to August 1, 2012, he did not have additional disability or disabilities independently rated 60 percent or higher during that period. Thus, the percentage requirements for SMC at the housebound rate are not met. Additionally, the evidence does not support entitlement to SMC at the housebound rate on any other basis prior to February 23, 2018. In this regard, the record does not indicate that the Veteran was substantially confined to his house or immediate premises due to service-connected disability or disabilities. There is no other basis upon which to award SMC at the housebound rate prior to February 23, 2018. Accordingly, as the evidence of record does not show that the Veteran was rated at 100 percent for one disability and at 60 percent or more for additional disability prior to February 23, 2018, and was not otherwise substantially confined to his home due to service-connected disabilities, the Board finds that an effective date prior to February 23, 2018 for the award of SMC at the housebound rate is not warranted. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.400. 3. Entitlement to an increased rate of SMC from February 23, 2018 to June 1, 2018 is denied. A veteran receiving compensation at the intermediate rate between 38 U.S.C. § 1114(n) and (o), and at the rate authorized under 38 U.S.C. § 1114(k), who is in need of regular aid and attendance or a higher level of care, is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. 38 U.S.C. § 1114(r). Determination of the factual need for aid and attendance is subject to the criteria of § 3.352. The amount of the additional allowance payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C. § 1114(r)(1). The amount of the additional allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C. § 1114(r)(2). The higher level aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(1). Additionally, under 38 U.S.C. § 1114 (t), an increased rate of aid and attendance may be paid to any veteran who, as the result of service-connected disability, is in need of regular aid and attendance for residuals of traumatic brain injury, is not eligible for compensation under subsection (r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. The Board finds that, as a matter of law, the Veteran cannot qualify for a higher level of aid and attendance under 38 U.S.C. § 1114, subsection (r), because he is not service connected for any disability that could potentially qualify him for a rating under 38 U.S.C. § 1114(n)-(p). Specifically, the Veteran has not been service connected for blindness, deafness, anatomical loss of any of his extremities, or loss of use of any of his extremities. Furthermore, the evidence does not indicate that the Veteran required regular aid and attendance or required a higher level of care by reason of service-connected disabilities. Likewise, as a matter of law, the Veteran cannot qualify for a higher level of SMC under 38 U.S.C. § 1114, subsection (t), because he is not service connected for residuals of a traumatic brain injury. The Board is sympathetic to the Veteran's contention that he has been disabled by his service-connected conditions. However, based on his current service-connected disabilities, the Veteran is not eligible for increased SMC as a matter of law. Accordingly, entitlement to an increased rate of SMC from February 23, 2018 to June 1, 2018 is denied. S. S. MAHONEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.