Citation Nr: A22004761
Decision Date: 03/17/22	Archive Date: 03/17/22

DOCKET NO. 211222-216581
DATE: March 17, 2022

ORDER

Entitlement to special monthly compensation (SMC) at the level designated under 38 U.S.C. § 1114(s) is granted.

FINDING OF FACT

The Veteran has a service-connected disability rated as total, a total disability rating based on individual employability due to service-connected disabilities (TDIU) and has additional service-connected disabilities which total at least 60 percent. 

CONCLUSION OF LAW

The criteria for entitlement to SMC under 38 U.S.C. § 1114(s) have been met. 38 U.S.C. §§ 1114(s), 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 3.350, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had honorable active-duty service with the United States Army from March 1964 to October 1964, from September 1967 to August 1969, and from December 1969 to March 1974 with additional Army National Guard service.

This matter is before the Board of Veteran's Appeals (Board) from an August 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that did not grant SMC under 38 U.S.C. § 1114(s).

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review.

On October 15, 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the August 2021 rating decision, indicating the need to address the issue of SMC pursuant to 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i).

On October 20, 2021, VA sent correspondence to the Veteran indicating the HLR request was not timely for an October 26, 2010, rating decision as the HLR request was over a year late. The VA assumed incorrectly the Veteran was asking about SMC based on loss of use of a creative organ, under 38 U.S.C. § 1114(k) of which the Veteran has received as of March 8, 2010. As such VA denied the request and indicated the October 2021 HLR request was also not timely filed.

In the December 2021 VA Form 10182, Decision Review Request: Board Appeal, Notice of Disagreement (NOD) in which the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on the appeal, the August 2021 rating decision. 38 C.F.R. § 20.301.  The Veteran indicated a desire to appeal the AOJ's failure to accept the HLR and address the appropriate SMC, under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). 

Entitlement to SMC at the level designated under 38 U.S.C. § 1114(s)

The Veteran contends he is entitled to SMC at the level designated under 38 U.S.C. § 1114(s). The Board finds the evidence persuasively favors the Veteran's claim for entitlement to SMC under 38 U.S.C. § 1114(s), hereinafter SMC(s).

VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114, and can be inferred by the record. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Entitlement to SMC is therefore an inferable issue anytime Veteran is asking for increased benefits. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Here, the Veteran specifically makes entitlement to SMC an issue through the HLR request and NOD filed.

Entitlement to SMC(s) will be granted if a Veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 U.S.C. §1114(s).

The Veteran has been granted entitlement to a TDIU effective September 30, 2020. The Veteran was granted entitlement to TDIU based on the Veteran's diabetes and diabetic peripheral neuropathy. As such, the first requirement of SMC has been met. See Bradley v. Peake,22 Vet. App. 280, 293 (2008) (holding that the requirement that the Veteran have a single service-connected disability rated as 100 percent can be met by a total disability rating based on TDIU, so long as that rating is supported by a single service-connected disability).

As for the additional criterion, the Veteran in this case also a separate service-connected disability ratable in excess of 60 percent disabling, as required by 38 U.S.C. § 1114(s). Specifically, the Veteran is service connected for bilateral sensorineural hearing loss at 80 percent.

Accordingly, based on the grant of a TDIU for the Veteran's combined service-connected disabilities of a common etiology, the Veteran has a single 100 percent disability rating and separate service-connected disability rated at least 60 percent. 

Therefore, SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) is granted.

 

 

DUSTIN L. WARE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C.A. Teich, 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.