Case A26039608

MICHAEL LANE · 2026 · Case ID: A26039608

MIXED

Summary

The veteran, who served from June 1948 to June 1971, appealed a March 2024 rating decision that failed to grant Special Monthly Compensation (SMC) based on the need for Aid and Attendance (A&A), alleging Clear and Unmistakable Error (CUE). The veteran also sought an earlier effective date for the SMC award and argued for a higher SMC rate. The Board denied the CUE claim, finding that the March 2024 decision was a plausible interpretation of the evidence and that the veteran's arguments amounted to a disagreement over evidence weighing, not undebatable error. The Board noted that the veteran did not appeal the March 2024 decision or submit new evidence within the appeal period, making it final. Regarding the effective date, the Board found that while the veteran's need for A&A was factually ascertainable for the period prior to the September 10, 2025, intent to file, the earlier claims and decisions were final. The Board granted an effective date of September 10, 2024, for the SMC award. Finally, the Board granted entitlement to SMC at the 38 U.S.C. § 1114(l) rate due to the veteran's need for regular A&A, and further granted an intermediate half-step increase under 38 U.S.C. § 1114(p) due to his service-connected bilateral hearing loss and tinnitus, which are independently ratable at 50 percent and distinct from his lumbar spine disability.

Rationale

AOJ determined entitlement to SMC based on A&A criteria met.; Veteran's helplessness due to service-connected disability was factually ascertainable for the one-year period prior to the claim.; Veteran required assistance with multiple activities of daily living.

Special Benefit

SMC - AID & ATTENDANCE

Docket No.

260115-612751

Full Decision Text

Citation Nr: A26039608
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 260115-612751
DATE: April 28, 2026

ORDER

Entitlement to a revision of a March 2024 rating decision that failed to grant special monthly compensation (SMC) based on the need for aid and attendance (A&A) based on clear and unmistakable error (CUE) is denied.

Entitlement to an effective date of September 10, 2024, but no earlier, for the grant of SMC based on the need for A&A, is granted.

Entitlement to SMC at a level of (l) 1/2 rate is granted.

FINDINGS OF FACT

1. A March 2024 rating decision that failed to grant SMC became final, as the Veteran did not appeal this decision or submit new and relevant evidence within the appeal period.

2. The evidence of record does not show that any error of fact or law manifestly changed the outcome of the March 2024 rating decision such that reasonable minds cannot differ as to whether SMC was warranted.

3. On September 10, 2025, the Veteran expressed his intent to file a claim for SMC based on the regular need for A&A and/or being housebound.

4. The Veteran's need of regular A&A was factually ascertainable for the entirety of the one-year period prior to receipt of the Veteran's claim.

5. The Veteran is in receipt of an 80 percent disability rating for bilateral hearing loss, which is separate and distinct from the conditions contributing to the SMC for A&A, entitling him to a next half-step at an intermediary level of SMC at the (l) and 1/2 rate.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a revision of a March 2024 rating decision that failed to grant SMC based on the need for A&A based on CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105.

2. The criteria for an effective date of September 10, 2024, for the award of SMC based on the need for A&A have been met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.400, 3.401.

3. The criteria for entitlement to a higher SMC at the 38 U.S.C. § 1114(l) and 1/2 rate have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1948 to June 1971.

In January 2026, the Veteran submitted VA Form 10182, Notice of Disagreement (NOD) choosing to continue his appeal via Direct Review by a Veterans Law Judge under the Appeals Modernization Act (AMA). Direct review is the appeal option to the Board in which a Board decision is issued based on evidence of record at the time of the prior decision. The Board cannot hold a hearing or accept into the record additional evidence in its direct review.

The Board acknowledges the recent decision by the United States Court of Appeals for Veterans Claims (Court) in Williams v. McDonough, 37 Vet. App. 305 (2024). Specifically, the Court held that the Board must refrain from deciding a case until the case proceeds to the point where a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202 (c)(2). Nevertheless, the Veteran's attorney has submitted arguments in support of the appeal. Additionally, in his NOD, the Veteran, through his representative, waived his right to change dockets. As such, the Board will proceed with adjudication without further delay.

The Board is bound by favorable findings made by the AOJ. Here, in the December 2025 decision, the AOJ determined that the Veteran required A&A.

CUE, EED, and entitlement to a higher rating

The Veteran contends that there was CUE in the March 2024 rating decision that failed to grant SMC. Additionally, he seeks an earlier effective date prior to September 10, 2025, for the award of SMC and also notes that he is entitled to SMC(l) plus an additional half step. Although CUE was not addressed in the rating decision on appeal, the Board finds that it is appropriately before the Board as part and parcel of his earlier effective date claim
delay.

The Board is bound by favorable findings made by the AOJ. Here, in the December 2025 decision, the AOJ determined that the Veteran required A&A.

CUE, EED, and entitlement to a higher rating

By way of history, in August 2023, the Veteran submitted VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular A&A. The claim was denied in a September 19, 2023, rating decision. On November 3, the Veteran submitted VA Form 20-0996 and requested review of the September decision. On November 9, the AOJ confirmed and continued the denial. The Veteran did not appeal the denial, and no new and relevant evidence was received within the year following the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. § 3.104.

On November 30, the Veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. On March 25, and based on the Veteran's service-connected bilateral hearing loss, tinnitus, bilateral lower extremity radiculopathy, and lumbosacral strain, the AOJ granted entitlement to TDIU, effective October 16, 2023. The AOJ also awarded an increased rating for bilateral hearing loss, granted service connection for bilateral lower extremity radiculopathy, and denied an increased rating for lumbosacral strain. The Veteran did not appeal the decision, and no new and relevant evidence was received within the year following the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. § 3.104.

In September 2025, the Veteran filed an intent to file form. In October, the Veteran filed VA Form 20-0995 and requested review of the March 25, 2024, decision. He also stated that there was CUE in the decision as it failed to grant A&A. The Veteran added that the VA had a duty to maximize his benefits, and the failure to grant A&A in the March 25, 2024, rating decision, while this evidence was of record, constitutes CUE. Additionally, the January 2024 VA examiner clearly stated that due to the severity of the Veteran's back disability, the Veteran was unable to care for himself. Finally, because he is rated at 80 percent for his hearing loss, he should have been afforded an extra half step.

In November, the AOJ confirmed and continued the denial. The AOJ also noted that CUE was not made in the March 2024 rating decision that did not address A&A based on available evidence.

On December 2, the Veteran requested review of the November decision. On December 24, the AOJ informed the Veteran that it found a duty to assist error in gathering evidence to support the Veteran's claim. On January 14, 2026, the AOJ awarded SMC based on A&A, effective September 10, 2025, the date VA received the intent to file. The Veteran disagreed with the effective date assigned. He also disagreed with the AOJ not awarding SMC(l) plus an additional half step and noted that there was CUE in the March 2024 decision.

1. CUE

Prior VA decisions that are final and binding are accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). Where the evidence establishes CUE, the prior rating decision will be reversed or amended. Id. The Court of Appeals for Veterans Claims (Court) has held that the following three-pronged test applies to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in effect at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that
. 38 C.F.R. § 3.105(a). Where the evidence establishes CUE, the prior rating decision will be reversed or amended. Id. The Court of Appeals for Veterans Claims (Court) has held that the following three-pronged test applies to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in effect at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (to prove the existence of CUE as set forth in 38 C.F.R. § 3.105(a), the claimant must show that an outcome-determinative error occurred).

The Court has explained that CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). CUE "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. At 313. "[E]ven where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo, 6 Vet. App. At 43-44. In other words, when there is evidence both supporting and against a previous determination, it is impossible for the claimant to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet. App. 84, 88 (2000).

Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a).

CUE is established when either the correct facts in the record were not before the adjudicator, or the statutory or regulatory provisions in existence at the time were incorrectly applied. The alleged error must be undebatable, not merely a disagreement as to how the facts were weighed or evaluated. The commission of the alleged error must have manifestly changed the outcome of the decision being attacked on the basis of CUE at the time that decision was made. Evans v. McDonald, 27 Vet. App. 180 (2014); Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992).

The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. King v. Shinseki, 26 Vet. App. 433 (2014).

Additionally, allegations that a previous adjudication improperly weighed and evaluated the evidence of record can never rise to the stringent definition of CUE. The claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Russell, 3 Vet. App. at 313-14. Similarly, broad brush allegations of "failure to follow regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim for CUE. Fugo, 6 Vet. App. at 44. The Court has further noted that a breach of VA's duty to assist cannot form a basis for a claim of CUE. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Thus, as a threshold matter, a claimant must plead CUE with sufficient particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997).

Analysis

The Veteran contends that the AOJ committed CUE by not awarding SMC in the March 2024 decision. The Veteran specifically asserts that CUE was committed by the AOJ's failure to grant SMC. He noted, given the March 25, 2024, rating decision, VA had a duty to maximize his benefits

As noted above, the Veteran did not appeal the March 2024 decision, and no new and relevant evidence was received within the year following the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. § 3.104. This decision is the basis for CUE in this instance.

The relevant law at the time of the March 2024 rating decision stated that a veteran is eligible for SMC under 38 U.S.C. § 1114(s) when he 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 due to service-connected disability or disabilities. The second requirement is met when the Veteran is substantially confined, as a direct result of service-connected disabilities, to his 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).

Based on review of the record, the Board finds that CUE was not shown in the March 2024 rating decision that failed to grant SMC based on the need for A&A of another. The AOJ reviewed and considered the evidence of record, applied the relevant law at that time, and essentially found the evidence of record did not reveal the Veteran met the schedular criteria for SMC, which is in the AOJ's discretion as weighing the evidence.

The Board further acknowledges the Veteran's assertion that SMC was warranted as VA had a duty to maximize his benefits given the March 2024 decision. See Bradley v. Peake, 22 Vet. App. 280 (2008). The Court in Bradley states that if TDIU is based on a single service-connected disability, it can serve as a single disability rated as total and the remaining disabilities can satisfy the remaining requirement of disabilities ratable at 60 percent. Here, the Board notes that the March 2024 rating decision reveals that TDIU was not granted based on a single service-connected disability, and thus, cannot be a basis to serve as a single disability rated as total in order to meet the criteria for SMC. Thus, the AOJ was correct in not granting/implementing SMC based on the need for A&A of another person.

Therefore, the Veteran's argument of CUE amounts to no more than a disagreement in how the evidence was weighed at that time, which cannot amount to CUE as it is not undebatable that a different outcome was warranted. Weighing the evidence is the province of the
requirement of disabilities ratable at 60 percent. Here, the Board notes that the March 2024 rating decision reveals that TDIU was not granted based on a single service-connected disability, and thus, cannot be a basis to serve as a single disability rated as total in order to meet the criteria for SMC. Thus, the AOJ was correct in not granting/implementing SMC based on the need for A&A of another person.

Therefore, the Veteran's argument of CUE amounts to no more than a disagreement in how the evidence was weighed at that time, which cannot amount to CUE as it is not undebatable that a different outcome was warranted. Weighing the evidence is the province of the adjudicator at the time, and it is not obvious that the outcome should have been manifestly different based on the record at the time of the decision. The failure to grant SMC in the March 2024 rating decision was a plausible interpretation of the evidence of record.

Accordingly, the Board finds that there was no CUE shown in the March 2024 rating decision that would result in a manifest change in the outcome. The Board finds that reasonable minds could differ as to the outcome of the decision at that time based on the evidence of record and the applicable law and regulations. Therefore, the Board concludes that revision of the March 2024 rating decision is not warranted.

2. Entitlement to an earlier effective date for the award of SMC

The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400.

An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).

VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.

Analysis

The Veteran contends that he is entitled to an effective date earlier than September 10, 2025, for the award of SMC.

An EED may be warranted if there is continuous pursuit of a previously denied decision. 38 C.F.R. § 3.2500(h). If a claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). A supplemental claim must be filed within one year after a final decision or the date entitlement arose. 38 C.F.R. § 3.2500(h).

Specifically, the Board notes that the November 2023 decision that denied entitlement to SMC and the March 2024 rating decision that granted TDIU, service connection, and increased ratings are final. The Veteran did not file a supplemental claim, request a higher-level review, or appeal to the Board within one year of the decisions. See 38 C.F.R. § 3.2500(c).
most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). A supplemental claim must be filed within one year after a final decision or the date entitlement arose. 38 C.F.R. § 3.2500(h).

Specifically, the Board notes that the November 2023 decision that denied entitlement to SMC and the March 2024 rating decision that granted TDIU, service connection, and increased ratings are final. The Veteran did not file a supplemental claim, request a higher-level review, or appeal to the Board within one year of the decisions. See 38 C.F.R. § 3.2500(c). Therefore, there has been no continuous pursuit of the Veteran's claims, and an effective date of November 2023 or March 2024 cannot be assigned.

The Board notes that prior to the September 10, 2025, intent to file, there was no evidence of an earlier unadjudicated claim. See Ingram v. Nicholson, 21 Vet. App. 232 (2007). Additionally, no communication, formal or informal, was received from the Veteran or his representative indicating an intent to file a claim for SMC. See 38 U.S.C. § 5110(b)(2); see also 38 C.F.R. §§ 3.400(o)(2); 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). As such, the Board finds that the earliest, pending date of claim for SMC A&A benefits is the September 10, 2025, intent to file a claim for compensation.

The Board notes that SMC, by definition, is a type of increased (i.e., "special") compensation. As such, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. Thus, the appropriate effective date for SMC is the date of receipt of the claim or date entitlement arose, whichever is later, or the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date. 38 C.F.R. § 3.400(o).

After careful review of the relevant evidence, the Board finds that the Veteran's helplessness due to a service-connected disability was factually ascertainable for the entirety of the one-year period prior to September 10, 2025.

In that regard, although outside of the period on appeal, the Veteran's July 2024 VA treatment records note that the Veteran had eight activities of daily living (ADL) dependencies, and at the time of the evaluation, he was on hospice care and had significant memory decline. Additionally, a January 2025 VA treatment record notes that the Veteran continued to get homemaker aide, he was unable to ambulate or dress without assistance, or "do most any ADL."

Thus, the evidence of record indicates that it is factually ascertainable that as of September 10, 2024, but no earlier, the Veteran required regular assistance of another. The Board notes that the Veteran, through his representative, stated that the Veteran's January 2024 exam report noted that the Veteran was unable to care for himself. However, if the increase occurred more than one year prior to the claim, the increase is effective the date of claim. 38 U.S.C. § 5110(b); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998).

As such, after affording the Veteran the benefit of the doubt, the Veteran's claim for an earlier effective date for the award of SMC based on the need for regular A&A is granted with an effective date of September 10, 2024, but not earlier. See 38 C.F.R. §§ 3.350(b), 3.400(o)(2).

3. Entitlement to a higher-level of SMC

SMC is available when, as the result of a service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. 38 U.S.C. § 1114;?38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of the veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114(k). Higher levels of SMC are
, but not earlier. See 38 C.F.R. §§ 3.350(b), 3.400(o)(2).

3. Entitlement to a higher-level of SMC

SMC is available when, as the result of a service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. 38 U.S.C. § 1114;?38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of the veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114(k). Higher levels of SMC are provided at 38 U.S.C. § 1114(l), (m), (n), (o) and (p), with SMC(o) being the maximum rate a veteran can receive under SMC(k)-(p).

SMC at the (l) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with visual acuity of 5/200 or less; (4) being permanently bedridden; or (5) being so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

SMC at the (m) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both hands; (2) anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place; (3) anatomical loss or loss of use of one arm and of one leg at a level, or with complications, preventing natural elbow and knee action with prosthesis in place; (4) blindness in both eyes having only light perception; or (5) blindness in both eyes which results in being so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c).

SMC as the (n) is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place; (2) has suffered the anatomical loss of both legs with factors that prevent the use of prosthetic appliances; (3) has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances; or (5) has suffered blindness without light perception in both eyes.

SMC at the (o) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (2) when two or more of the rates (l) through (n) are warranted, with no disability being considered twice; (3) bilateral deafness rated at 60 percent or more (when the hearing impairment in either one or both ears is service-connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; or (4) service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more (when the hearing impairment in either one or both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1). In addition, through the combination of loss of use of both legs and helplessness, paralysis of both lower extremities together with loss of anal and bladder sphincter control merits payment of SMC at the maximum (o) rate. 38 C.F.R. § 3.350(e)(2). Payment of SMC at the maximum (o) rate is also merited for loss of use of two extremities combined with helplessness, to include from absolute deafness and nearly total blindness and from very severe multiple injuries producing total disability outside of useless extremities. 38 C.F.R. § 3.350(e)(4). Determinations must be based upon separate and distinct disabilities. 38 C.F.R. § 3.350(e)(3).

SMC Whole and Half Steps

SMC at the "p" rate assigns whole or half steps of increased SMC depending
of SMC at the maximum (o) rate. 38 C.F.R. § 3.350(e)(2). Payment of SMC at the maximum (o) rate is also merited for loss of use of two extremities combined with helplessness, to include from absolute deafness and nearly total blindness and from very severe multiple injuries producing total disability outside of useless extremities. 38 C.F.R. § 3.350(e)(4). Determinations must be based upon separate and distinct disabilities. 38 C.F.R. § 3.350(e)(3).

SMC Whole and Half Steps

SMC at the "p" rate assigns whole or half steps of increased SMC depending on the combination of disabilities shown. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). Section 1114(p) provides for half-or full step increases to the next higher rate in 38 U.S.C. § 1114(l) through (n) for a veteran whose condition exceeds the requirements of his current rate but does not qualify for the next higher rate. In other words, SMC under 38 U.S.C. § 1114(p) can provide for "intermediate" rates between the different subsections based on anatomical loss or loss of use of the extremities or blindness in connection with deafness and/or anatomical loss or loss of use of a hand or foot. Id.

SMC per Section 1114(p) does not actually assign a rate as much as it provides a "bump up" for rates assigned under another SMC provision. Depending on the circumstances, the VA may award a precise rate of SMC or may choose an intermediate rate between the various SMC levels, e.g., "m and a half" or "n and a half." See 38 U.S.C. § 1114(p). In total, there are seven levels of SMC rates from (l) to (o): (l); (l and 12); (m); (m and 12); (n); (n and 12); and (o).

SMC at the "p" level will be awarded when the Veteran is in receipt of an SMC rate between (l) and (o) and also has additional service-connected disabilities that combines independently to 50 or 100 percent. That is, SMC at the "p" level is assigned for the presence of additional disabilities (not involved in prior SMC determinations) rated 50 percent (additional half step) or 100 percent (additional whole step) disabling. 38 C.F.R. § 3.350(f). The additional single permanent disability independently ratable at 50 or 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the disabilities establishing entitlement under 38 U.S.C. § 1114(l) through (n) or the intermediate rate provisions. 38 C.F.R. § 3.350(f)(3)-(4).

The requirements for a half-step increase are provided by 38 C.F.R. §3.350(f)(3) and the requirements for a full-step increase are provided by § 3.350(f)(4).

Recently, in Barry v. McDonough, 101 F.4th 1348 (Fed. Cir. 2024), the United States Court of Appeals for the Federal Circuit interpreted the SMC rate-increase provisions authorized by 38 U.S.C. § 1114(p) and implemented by 38 C.F.R. § 3.350(f). In Barry, the Federal Circuit held that VA's regulations unambiguously allow for more than one intermediate-rate SMC increase.

Analysis

The Veteran contends entitlement to a half-step increase is warranted.

In January 2024, the Veteran was afforded a VA examination to determine the severity of his lumbar spine disability. The examiner confirmed the Veteran's lumbosacral strain and left lower extremity radiculopathy diagnoses. The examiner stated, due to the severity of the Veteran's back conditions, the Veteran was unable to care for himself.

Based on the 2024 examiner's assertion that the Veteran needed assistance with activities of daily living, VA requested an opinion. In January 2026, the AOJ obtained an opinion to determine whether the Veteran required the A&A of another person due to his service-connected disability. The examiner was asked to clarify whether or not the Veteran's service-connected conditions solely prevented him from taking care of himself. The examiner was also asked to clarify whether the Veteran's back condition with radiculopathy was the primary disability that prevented him from taking care of himself. The examiner stated that the Veteran's lumbosacral strain, bilateral lower radiculopathy, and bilateral hearing loss were considered permanent and totally disabling and restricted the Veteran's activities/functions. The Veteran required assistance with Bathing/showering, eating or self-feeding, dressing, ambulating within the home or living area, tending to hygiene needs, transferring in or out of bed/chair, toileting, and medication management. He was not legally blind. The examiner stated that the Veteran's lumbar spine disability with radiculopathy, severely restricted mobility and caused radiating pain, numbness, weakness, and difficulty walking or performing daily activities, as nerve compression leads to functional impairment, making movement challenging and sometimes debilitating. significantly impacts the veteran's gait, strength, and overall function. According to Wheeless' Textbook of Orthopedics, to suggest back pain with radiculopathy caused the symptoms noted above and restricts mobility by causing radiating pain, numbness, tingling, and significant muscle weakness in the buttocks, legs, or feet due to nerve compression, leading to gait abnormalities, difficulty standing/walking, and altered movement patterns (like avoiding bending) as the body tries to reduce nerve irritation and protect itself from worsening symptoms. This creates a cycle where nerve signals are disrupted, limiting normal movement and function.

In January 2026, the AOJ determined that entitlement to SMC is warranted because the criteria regarding A&A had been met, and entitlement under 38 U.S.C. 1114, subsection (l) and 38 CFR 3.350(b) on account of being permanently bedridden from September 10, 2025.

As the Veteran has already been determined to need regular A&A and was therefore awarded SMC at the (l) rate, the Board will next consider whether the Veteran is entitled to an intermediate, or half step rate above his current SMC rate assigned under 38 U.S.C. § 1114(l).

Here, in January 2026, the AOJ obtained an opinion to determine whether the Veteran's back condition with radiculopathy was the primary disability that prevented him from taking care of himself. Although the examiner provided an opinion, the examiner did not specifically address whether the Veteran's back condition with radiculopathy was the primary disability that prevented him from taking care of himself. However, although outside the period on appeal, the Board notes that the January 2024 examiner stated that due to severity of the Veteran's back conditions, the Veteran was unable to care for himself. As such, after affording the Veteran the benefit of the doubt, the Board finds that the Veteran's back disability with radiculopathy prevented him from taking care of himself.

The evidence also shows that the Veteran currently has service-connected disabilities or combination of disabilities, such as bilateral hearing loss and tinnitus, that are independently ratable at 50 percent or more, and separate and distinct from his lumbar spine disability with radiculopathy. Based on the Veteran's entitlement to SMC under 38 U.S.C. § 1114(l) and additional service-connected disability or disabilities that combine independently to 50 percent or more, the Board finds that the Veteran is entitled to an intermediate, or half step, rate above his current SMC rate under 38 U.S.C. § 1114(l). Breniser v. Shinseki, 25 Vet. App. 64, 78-79 (2011) (holding the Board erred when it did not consider whether the appellant was entitled to a higher level of SMC based on § 1114(p) when it was clear his condition exceeded the requirements for SMC at the (l) level, and that consideration was not limited to enumerated instances in 38 C.F.R. § 3.350(f)).

Consequently, the evidence of record supports a higher rate of SMC at the "p" level (specifically the "l and 1/2 rate or SMC-L1/2) based on the presence of additional disabilities (not involved in the prior S

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