Citation Nr: 22018182 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 05-11 335 DATE: March 28, 2022 ORDER A rate of special monthly compensation (SMC) based on housebound criteria under 38 U.S.C. § 1114(s) prior to April 20, 1999, is denied. A rate of SMC based on housebound criteria under 38 U.S.C. § 1114(s) prior to August 11, 2008 (excluding the period from April 20, 1999, to April 30, 1999), is denied. A rate of SMC higher than 38 U.S.C. § 1114(p) at the P-2 level from August 7, 2010, is denied. FINDINGS OF FACT 1. For the period on appeal prior to April 20, 1999, the Veteran was not permanently housebound, nor did he have a service-connected disability rated as total with additional disabilities independently ratable at 60 percent or more. 2. For the period on appeal prior to August 11, 2008 (excluding the period from April 20, 1999, to April 30, 1999), the Veteran was not permanently housebound, nor did he have a service-connected disability rated as total with additional disabilities independently ratable at 60 percent or more. 3. For the period on appeal from August 7, 2010, the evidence does not show that the Veteran has met the criteria for SMC at higher than the P-2 level. CONCLUSIONS OF LAW 1. For the period on appeal prior to April 20, 1999, the criteria for SMC higher than SMC at the housebound rate have not been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. 2. For the period on appeal prior to August 11, 2008 (excluding the period from April 20, 1999, to April 30, 1999), the criteria for SMC higher than SMC at the housebound rate have not been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. 3. For the period on appeal from August 7, 2010, the criteria a rate of SMC higher than the P-2 level have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 4.63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to January 1983. During his period of service, he earned the Air Force Outstanding Unit Award, Air Force Good Conduct Medal with five (5) Oak Leaf Clusters, Air Force Longevity Service Ribbon with four (4) Oak Leaf Clusters, National Defense Service Medal, and Noncommissioned Officer Professional Military Education Ribbon. This matter has an extensive procedural history, which the Board will not recite in its entirety here. Most recently, the Board remanded the matter for further development in November 2021. Subsequently, by a December 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to special monthly compensation based on housebound criteria from April 20, 1999, to April 30, 1999; and from August 11, 2008, to August 7, 2010 As the Veteran is presumed to be seeking the maximum benefit authorized by law, the issue of entitlement to a higher rate of SMC remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993). SMC 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 service-connected disabilities and basic levels are listed at 38 U.S.C. § 1114(k). Higher levels of SMC are provided under 38 U.S.C. § 1114 in the subsections following subsection (k). Additional levels of SMC are provided in 38 U.S.C. § 1114(l) through (t). By way of background, the Veteran is in receipt of nonservice-connected pension based on the need of aid and attendance benefits, effective November 13, 1998. Moreover, he is in receipt of SMC at the following rates: S-1 under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) due to cerebrovascular accident (stroke) rated at 100 percent and additional service-connected disability independently ratable at 60 percent or more, from April 20, 1999, to April 30, 1999; K-1 under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a) due to deafness of both ears, having absence of air and bone conduction, from August 11, 2008; S-1 under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) due to hearing loss rated at 100 percent and additional service-connected disabilities independently ratable at 60 percent or more, from August 11, 2008, to August 6, 2010; L-1 under 38 U.S.C. § 1114, subsection (l) and 38 C.F.R. § 3.350(b) due to loss of use of one hand and loss of use of one foot from August 7, 2010; and P-2 under 38 U.S.C. § 1114, subsection (p) and 38 C.F.R. § 3.350(f)(4) at the rate equal to subsection (m) due to entitlement to the rate equal to subsection (l) with additional disability, hearing loss, independently ratable at 100 percent from August 7, 2010. Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: Inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater-or-lesser part of the day to promote convalescence or cure will not suffice. In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance, but that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function that a veteran is unable to perform should be considered in connection with his or her condition as a whole. Also, it is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. See Turco, supra; 38 C.F.R. § 3.352. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). 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). Accordingly, the question before the Board is whether the Veteran is entitled to a higher level of SMC at any time during the relevant periods on appeal. A. Prior to August 11, 2008 (excluding April 20, 1999, to April 30, 1999) As noted above, under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if a veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is 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) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s). A veteran is permanently housebound when he or she is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises. 38 C.F.R. § 3.350(i). Consequently, subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. In this regard, the Board notes that in Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could SMC under 38 U.S.C. § 1114(s). Here, the Veteran is entitled to SMC under 38 U.S.C. § 1114(s) from April 20, 1999, to April 30, 1999; and from August 11, 2008, to August 6, 2010. However, was not in receipt of a 100 percent disability rating for any of his service-connected disabilities during the period prior to April 20, 1999, nor prior to August 11, 2008 (excluding the period from April 20, 1999, to April 30, 1999). Additionally, the record does not reflect that the Veteran was in receipt of a TDIU predicated on one disability to be considered together with another disability separately rated at 60 percent or more at any time during the period on appeal. In the absence of a 100 percent rating for a single disability, SMC is not warranted during the period on appeal prior to August 11, 2008 (excluding the period from April 20, 1999, to April 30, 1999). 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). B. From August 7, 2010 Here, the Veteran is in receipt of a higher level of SMC under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(4) at the rate equal to subsection (m). Specifically, the Veteran is entitled to SMC under U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(4) at the rate equal to subsection (m) on account of loss of use of one hand and loss of use of one foot with additional disability, hearing loss, independently ratable at 100 percent from August 7, 2010. The Veteran is entitled to SMC under 38 U.S.C. § 1114(l) based on the need for aid and attendance due to his loss of use of one hand and loss of use of one foot. He is also separately entitled to SMC under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(4) based on the additional disability of hearing loss independently ratable at 100 percent. The Veteran was granted a full step increase at the rate equal to subsection (m) for the separate independently rated 100 percent for hearing loss. There is no evidence, nor does the Veteran argue, that his hearing loss, or any other service-connected disability, requires the aid and attendance of another independently of his loss of use of one hand and loss of use of one foot; therefore, he is not entitled to a separate SMC under 38 U.S.C. § 1114(l). Accordingly, there are no other bases by which the Board could award a higher level of SMC for this period on appeal. The Veteran has not been found to have loss of use of a third extremity, nor has he ever been found to have any of the disability combinations which are also listed under 38 C.F.R. § 3.350(f) for a higher step or half step increase under 38 U.S.C. § 1114(p), nor has the Veteran asserted that he has. The Board also finds that the other possible levels of SMC do not apply in this case. SMC under subsection (n) is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has suffered the anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. Here, the evidence of record does not support a finding that the Veteran meets the criteria for SMC under subsection (n); accordingly, this rate does not apply. SMC under subsection (o) only applies if the veteran, as a result of a service-connected disability, has suffered disability under conditions that would entitle such veteran to two or more of the rates provided in one or more subsections (l) through (n) of this section, no condition being considered twice in the determination, or if the veteran has suffered bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 60 percent or more disabling and the veteran has also suffered service-connected total blindness with 20/200 visual acuity or less, or if the veteran has suffered service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less, or if the veteran has suffered the anatomical loss of both arms with factors that prevent the use of prosthetic appliances. Given that the maximum rate under subsection (o) is only available when a veteran's entitlement to two or more rates under subsections (l) through (n) is based on separate service-connected disabilities, the Veteran does not meet the criteria for SMC under subsection (o); accordingly, this rate does not apply. SMC under subsection (r) initially requires that a veteran is entitled to SMC authorized under subsection (o) of this section, at the maximum rate authorized under subsection (p) of this section, or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) of this section and at the rate authorized under subsection (k). As indicated above, entitlement to SMC was not warranted pursuant to subsections (n) and (o); therefore, the Veteran does not meet the criteria for SMC under subsection (r). Lastly, SMC under subsection (t) initially requires that a veteran is in need of regular aid and attendance for the residuals of traumatic brain injury and is not eligible for compensation under subsection (r)(2). Here, the evidence of record does not support a finding that the Veteran has residuals of traumatic brain injury; therefore, he does not meet the criteria for SMC under subsection (t). The Board finds the evidence shows the Veteran has been properly compensated at the P-2 rate. A higher rating under §1114 requires that the Veteran have more than one separate and distinct service-connected disability that would entitle him to two or more of the SMC rates listed in subsections (l) through (n). See 38 C.F.R. § 3.350(e)(1)(ii). In this case, while he has more than one disability rated as 100 percent disabling, the evidence does not show that the Veteran has more than one separate and distinct service-connected disability that would entitle him to two or more of the SMC rates listed in subsections (l) through (n). Therefore, his appeal must be denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.