Citation Nr: A22004739
Decision Date: 03/17/22	Archive Date: 03/17/22

DOCKET NO. 211101-194807
DATE: March 17, 2022

ORDER

An effective date of September 23, 2014, but no earlier, for the award of service connection for asthma and the assignment of a 100 percent rating for asthma, is granted.

Special monthly compensation (SMC) on account of the need for regular aid and attendance under 38 U.S.C. § 1114(l) is granted.

Special monthly compensation (SMC) based on housebound status under 38 U.S.C. § 1114(s) is denied. 

A higher rate of special monthly compensation (SMC) at the intermediate "l and 12" rate under 38 U.S.C. § 1114(p) is granted. 

FINDINGS OF FACT

1. An October 2021 Board decision confirmed a September 23, 2014, effective date for the award of service connection for asthma.  The October 2021 Board decision "subsumed" the AOJ's earlier June 2021 rating decision that assigned the same effective date.  Therefore, the June 2021 rating decision cannot be subject to a clear and unmistakable (CUE) challenge by any party. 

2. The date of the original claim for service connection for asthma (September 23, 2014) is later than the date of entitlement for service connection for asthma arose (February 1, 1961). 

3. With regard to SMC aid and attendance (A&A) benefits, the Veteran is entitled to SMC at the L-rate based on the need for aid and attendance (A&A) of another person, due to the collective impact of his service-connected asthma, chronic adrenal insufficiency, and right hand disabilities, or due to the sole impact of his service-connected asthma disability.   

4. With regard to SMC housebound benefits, the Veteran has a service-connected disability rated as 100 percent disabling  asthma.  However, he cannot be awarded a TDIU rating from any other single service-connected disability.  Moreover, the Veteran does not have additional service-connected disability or disabilities independently ratable at 60 percent or more.  In addition, the most probative evidence of record demonstrates that the Veteran does not meet the factual criteria with regard to being "permanently housebound" due to his service-connected disabilities.

5. With regard to SMC benefits at the P-rate, the Veteran has a combination of disabilities independently ratable at 50 percent or more that is separate and distinct from his asthma (rated as 100 percent disabling).  He therefore meets the criteria for entitlement to SMC at the intermediate rate between the "l" and "m" levels.  

CONCLUSIONS OF LAW

1. The requirements have been met for an earlier effective date of September 23, 2014, but no earlier, for the award of service connection for asthma and the assignment of a 100 percent rating for asthma.  38 U.S.C. §§ 5101(a), 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.105(a)(1)(v), 3.151, 3.155, 3.156(b), 3.160(c), 3.400, 20.1104 (2014).

2. The criteria have been met for entitlement to SMC benefits at the L-rate on account of the need for regular aid and attendance.  38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350(b)(3), 3.352(a).  

3. The criteria have not been met for entitlement to SMC benefits at the S-rate based on housebound status.  38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350(i), 4.16(a), 4.25.

4. The criteria have been met for entitlement to SMC benefits at an intermediate rate ("l and 12" rate) under 38 U.S.C. § 1114(p).  38 U.S.C. § 1114(p), 5107; 38 C.F.R. §§ 3.102, 3.350(f)(3), 4.25.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1959 to January 1961 in the U.S. Army.

This appeal has been advanced on the Board's docket.  38 U.S.C. § 7107(b) (effective February 19, 2019); 38 C.F.R. § 20.800(c) (2020).  

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA).  This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review under a modernized review system.  This decision has been written consistent with the new AMA framework.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2021 AMA rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

In response to the AMA rating decision, the Veteran filed a November 1, 2021, Decision Review Request: Board Appeal (Notice of Disagreement / NOD) (VA Form 10182).  In his November 1, 2021, NOD, the Veteran selected the Evidence Submission Lane.  See 38 C.F.R. §§ 20.300, 20.303 (2020).  In light of this choice, for the Evidence Submission Lane, the Board may only consider the evidence of record at the time of the AOJ's October 28, 2021, rating decision; evidence submitted by the Veteran or his attorney along with the November 1, 2021, NOD (VA Form 10182); and finally, any evidence submitted by the Veteran or his attorney within 90 days following receipt of the November 1, 2021, NOD (VA Form 10182).  38 C.F.R. § 20.303(a)-(b).  

Importantly, the Veteran submitted additional evidence (a January 2022 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) from a VA physician), within 90 days of the November 2021 NOD.  Since this evidence was submitted within the 90-day evidentiary window discussed above, it is considered timely.  Also, this medical evidence was relevant to the inferred SMC issues on appeal.  Simply stated, in the present case, the Veteran submitted a copy of this January 2022 VA aid and attendance examination during the appropriate evidentiary window (within 90 days of his November 2021 NOD).  Therefore, the Board can consider this January 2022 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) from a VA physician to the extent it relates to the period on appeal (i.e., to the period prior to the October 28, 2021, AOJ rating decision).  See 38 C.F.R. §§ 3.103(c)(2); 20.300, 20.303(b)(1), 20.801(a).  

However, the Board also observes that subsequent to the October 28, 2021, AMA rating decision on appeal, the AOJ secured additional VA treatment records dated from November 2021 to February 2022.  (Importantly, this VA clinical evidence was secured by the AOJ, but not resubmitted by the Veteran or his attorney).  VA regulation provides that the evidentiary record for a claim before the AOJ closes when VA issues notice of a decision on the claim (here, on November 15, 2021, when the AOJ provided the Veteran notice of the October 28, 2021, rating decision).  See 38 C.F.R. § 3.103(c)(2).  Under the AMA, the duty to assist and constructive possession will only apply for the period prior to the most recent adjudication (prior to November 15, 2021) and will not apply while an appeal is pending before the Board.  See 38 C.F.R. §§ 3.159(c), 3.103(c)(2)(iii).  Therefore, none of the additional VA treatment records secured by the AOJ after notice of the October 28, 2021, AMA rating decision will be considered by the Board in the present decision. 

Finally, the Board has added to the present appeal the issues of entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(l) (aid and attendance or A&A) and (s) (housebound) and (p) (intermediate or next higher rate).  In fact, in a recent unappealed March 2020 rating decision, the AOJ adjudicated and denied entitlement to SMC under the provisions of 38 U.S.C. § 1114(l) and (s).  Regardless, VA regulation states that once VA receives a complete claim, VA will adjudicate as part of that claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., entitlement to SMC or similar issue).  See 38 C.F.R. § 3.155(d)(2).  Notably, the claimant may, but need not, assert entitlement to ancillary benefits for SMC at the time the complete claim for the primary claim is filed.  Id.  This VA regulation is the result of VA adopting the precedential holding of Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (a claim for an increased rating may include the "inferred issue" of entitlement to SMC or similar ancillary benefit even where a claimant has not expressly placed SMC or the similar ancillary benefit at issue).  

In the present case, based on the Veteran and his attorney's assertions, the Board finds that the issues of entitlement to SMC under the provisions of 38 U.S.C. § 1114(l) and (s) and (p) were reasonably raised during the course of the Veteran's initial rating / earlier effective date appeal for his service-connected asthma.  See e.g., September 2021 and November 2021 VA Forms 10182 / NODs; September 2021 and November 2021 supplemental statements by attorney; November 2021 attorney statement in support of claim; and November 2021 "VA Form 10182 Statement" from attorney.  That is, entitlement to various SMC benefits were reasonably raised by the record despite the fact that entitlement to various SMC benefits were not explicitly adjudicated by the AOJ in the October 28, 2021, AMA rating decision on appeal.  Therefore, the Board has added the SMC issues to the present appeal.   

I.  Earlier Effective Date (EED) for Service Connection for Asthma

Service treatment records (STRs) dated from 1959 to 1961 document frequent treatment for coughing and other respiratory symptoms, as well as environmental exposures for the Veteran.  

In January 1961, the Veteran was separated from his active duty service in the Army.  

In an April 1968 Application for Compensation or Pension (VA Form 21-526), the Veteran submitted a formal claim for service connection for Athlete's foot and frostbite of the right third finger.  (The Veteran did not mention asthma or any respiratory condition in this formal claim and did not refer to any medical evidence documenting same). 

In a September 23, 2014, Application for Compensation (VA Form 21-526), the Veteran submitted a formal claim for service connection for asthma.

In May 2015 and October 2015 rating decisions, the AOJ denied the Veteran's formal claim for service connection for asthma.  The Veteran did not appeal the latter October 2015 rating decision, and no pertinent evidence was received within one year of the October 2015 rating decision, such that the October 2015 rating decision appears to have been final for the asthma issue.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2015).

In a September 14, 2017, Application for Compensation (VA Form 21-526EZ), the Veteran submitted a formal claim to reopen service connection for asthma.

In a November 2017 rating decision, the AOJ reopened but then again denied the Veteran's claim for service connection for asthma.  However, additional evidence relevant to the asthma appeal continued to be secured and submitted for several years after the November 2017 rating decision, such that it was not considered final.  See 38 C.F.R. § 3.156(b) (when new and material evidence is received prior to the expiration of the appeal period (one year for a rating decision and 60 days for a SOC), it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period).  

In a March 2021 rating decision, based on the submission of additional relevant evidence, the AOJ on its own initiative readjudicated but then again denied the Veteran's claim for service connection for asthma.  The AOJ found that additional, previously unsecured STRs were associated with the claims file under 38 C.F.R. § 3.156(c) after the earlier November 2017 rating decision.  However, upon a careful review of the record, the Board finds that the "additional" STRs secured in March 2020 were in fact duplicates of previous STRs of record.  These STRs did not show any additional treatment for respiratory problems during service, such that the provisions of 38 C.F.R. § 3.156(c) do not apply here.  In any event, as discussed above, 38 C.F.R. § 3.156(b) applies to keep the earlier claim for service connection for asthma open and pending. 

In a May 2021 VA Form 10182 (NOD), the Veteran appealed to the Board the AOJ's March 2021 rating decision that denied service connection for asthma. 

In a June 2021 Board decision, the Board granted the Veteran service connection for asthma.  The Board determined that the Veteran's current asthma was at least as likely as not related to in-service environmental exposures.

In a June 2021 rating decision, the AOJ implemented the Board's award of service connection for asthma.  The AOJ assigned a 60 percent rating for asthma, effective from September 23, 2014, the date of the Veteran's original Application for Compensation (VA Form 21-526) for service connection for asthma. 

In a September 2021 VA Form 10182 (NOD), the Veteran appealed the AOJ's June 2021 rating decision that had assigned only a 60 percent rating for asthma.  The Veteran sought a higher initial rating for asthma in excess of the 60 percent assigned.  

In an October 2021 Board decision, the Board awarded the Veteran a higher initial rating for asthma of 100 percent.  The Board pointed out that the earlier AOJ's June 2021 rating decision on appeal had awarded the Veteran service connection for asthma, effective from September 23, 2014.  The Board in its FINDINGS OF FACTS stated that the 100 percent rating for asthma was effective "for the entire appellate period."  

In the October 2021 rating decision on appeal, the AOJ implemented the Board's award of a higher 100 percent rating for asthma.  However, the AOJ changed the effective date for the award of service connection and the 100 percent rating for asthma to September 14, 2017, instead of its previously assigned effective date of September 23, 2014.  

In this regard, in the October 2021 rating decision on appeal, the AOJ determined that in its earlier June 2021 rating decision it had committed clear and unmistakable error (CUE) in the assignment of an effective date for asthma.  See 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105, 3.2600(e).  Specifically, the AOJ determined it had committed CUE in assigning an effective date of September 23, 2014, for the award of service connection for asthma.  The AOJ reasoned that the claim for service connection for asthma was not open or pending or continuously pursued since September 23, 2014.  Instead, the effective date for the award of service connection for asthma should be September 14, 2017, which was the date of receipt of the Veteran's formal claim to reopen service connection for asthma, subsequent to the final October 2015 rating decision.  That is, under the amended regulations for claims effective March 24, 2015, the Veteran correctly filed a "complete" application form for the claim to reopen  a September 14, 2017, Application for Compensation (VA Form 21-526EZ).  See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155(d)(1), 3.160(a), (d), (e) (2020).  

In a November 2021 VA Form 10182 (NOD), the Veteran disagreed with the new effective date assigned in the AOJ's October 2021 rating decision.  Specifically, the Veteran appealed the new effective date assigned (September 14, 2017) for the award of service connection for asthma and a 100 percent rating for asthma.  This appeal has now reached the Board, as explained in the introduction of the present Board decision.

The Veteran contends that the current effective date assigned for the grant of service connection for his asthma (September 14, 2017), is incorrect.  Instead, he believes the effective date should be September 23, 2014, the date he filed his original Application for Compensation (VA Form 21-526) for service connection for his asthma.  The Veteran emphasizes that in the June 2021 rating decision that initially awarded service connection for asthma, the AOJ assigned the correct effective date of September 23, 2014, for this award.  However, in the October 2021 rating decision on appeal, the AOJ changed the effective date for the award of service connection to September 14, 2017, on the basis of finding CUE in its earlier June 2021 rating decision that had assigned an initial effective date of September 23, 2014.  The Veteran's attorney has argued that the AOJ's decision to find CUE was in effect an improper "severance" of service connection for asthma under the provisions of 38 C.F.R. § 3.105(d), for the time period from September 23, 2014, until September 14, 2017.  In doing so, the proper procedures for severance were not followed by the AOJ.  The attorney argues it was improper for the AOJ in the October 2021 rating decision to sever or discontinue or disturb the earlier effective date previously assigned of September 23, 2014.  The Board in its October 2021 Board decision had in a manner of words already confirmed that September 23, 2014, was the correct effective for the award of service connection and the assignment of a 100 percent rating for asthma.  See November 1, 2021, VA Form 10182 / NOD; November 2021 "VA Form 10182 Statement" from attorney. 

At the outset, the Board is mindful that effective March 24, 2015, VA updated the regulations concerning the filing of claims, adopting a standardized claims system. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014).  The purpose of these amendments was to improve the quality and timeliness of the processing of veterans' claims for benefits by standardizing the claims and appeals processes through the use of specific VA forms.  VA deleted former 38 C.F.R. § 3.157, which allowed for reports of examination or hospitalization to be treated as claims under certain circumstances, and completely rewrote 38 C.F.R. § 3.155, removing the provisions which allowed for the filing of informal claims.  A complete claim on an application form is now required for all types of claims.  38 C.F.R. § 3.155(d).  As such, it is only appropriate to refer to a communication dated on or after March 24, 2015, as a "claim" if the communication has been received on an application form prescribed by the Secretary.  See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155, 3.160 (effective March 24, 2015).

However, the above amendments only apply to claims filed on or after March 24, 2015.  In the present case, the Board's focus will be directed to the original September 2014 claim for service connection for asthma.  This is prior to the March 24, 2015, changes in the law for the filing of a claim.  Thus, the amended regulations, effective beginning March 24, 2015, pertaining to the requirement of formal claims on the proper VA prescribed form, do not apply here when looking at the evidence of record during this earlier time frame.  Instead, the Board will examine whether the Veteran filed any formal or informal claim for service connection for asthma prior to March 24, 2015.  Therefore, the former version of the applicable VA regulations pertaining to claims applies for this time period, allowing for informal claims and allowing for reports of examination or hospitalization to be treated as claims, under certain circumstances.  See e.g., 38 C.F.R. §§ 3.1 (p), 3.151, 3.155, 3.157 (2014).   

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application.  38 U.S.C. § 5110(a).  

If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).  

The effective date based on the submission of new and material evidence (NME) received after a final disallowance is the date of the receipt of the new, reopened claim.  38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r).  See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed").  In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.  The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim.  

Under the legacy appeal provisions of 38 U.S.C. § 7105(a), an appeal to the Board after an initial AOJ decision must be initiated by a NOD and completed by a Substantive Appeal (VA Form 9 or equivalent) after a SOC is furnished to the claimant.  In essence, the following sequence is required: there must be a rating decision by the AOJ, the claimant must express timely disagreement with the decision (a NOD), VA must respond by explaining the basis of the decision to the claimant (a SOC), and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed Substantive Appeal (VA Form 9 or equivalent).  See 38 C.F.R. §§ 3.103, 20.200, 20.201, 20.202, 20.302 (2018).  Proper completion and filing of a Substantive Appeal are the last actions a claimant needs to take to perfect an appeal.  38 C.F.R. § 20.202.  Subsequently, certification of issues on appeal to the Board by the AOJ by way of a VA Form 8 (Certification of Appeal) should occur for administrative purposes.  See 38 C.F.R. § 19.35.  

With regard to finality, under the previous legacy system for claims not subject to the modernized review system, an AOJ decision becomes final unless an NOD is filed or new and material evidence (NME) is received within the one-year appeal period.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.  Stated another way, under the previous legacy system, a "finally adjudicated claim" is a claim that is adjudicated by the VA as either allowed or disallowed when whichever of the following occurs first: (i) the expiration of the one year period in which to file a NOD, pursuant to the provisions of §19.52(a) or §20.502(a) of this chapter, as applicable; or (ii) disposition on appellate review.  38 C.F.R. § 3.160(d)(1).  In other words, a rating action becomes "final" by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest.  Id.  In this regard, the Court has also confirmed an AOJ decision becomes final "only after the period for appeal has run."  Jennings v. Mansfield, 509 F.3d. 1362, 1368 (Fed. Cir. 2007).  

However, if VA fails to act on an NOD appeal by issuing a SOC, or if VA fails to act on new and material evidence received under § 3.156(b) by readjudicating the claim, the claim remains pending.  See 38 C.F.R. § 3.160(c) (a pending claim is an application, formal or informal, which has not been finally adjudicated); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009).  The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it.  Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007); Norris v. West, 12 Vet. App. 413, 422 (1999).  The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper.  Ingram, 21 Vet. App. at 249-255 (2007).  See also Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue SOC after valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability).  

A final, binding decision is generally not subject to revision on the same factual basis.  38 C.F.R. § 3.104(a).  Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE).  38 C.F.R. §§ 3.104(b), 3.105(a).  But at the outset, the issue of CUE in a prior AOJ or Board decision that denied service connection for asthma is not before the Board at this time.  In this respect, there has been no allegation by the Veteran or his attorney of CUE in the earlier May 2015, October 2015, or November 2017 rating decisions that initially denied service connection for asthma.  See 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C. § 5107(b).

Upon review of the evidence, the Board finds that an earlier effective date of September 23, 2014, but not earlier, is granted for the award of service connection for asthma.  

At the outset, at times, both the AOJ and the Veteran's attorney have treated the AOJ's decision to change the effective date for the award of service connection for asthma from September 23, 2014, to September 14, 2017, on the basis of CUE as a "severance" of service connection under the provisions of 38 C.F.R. § 3.105(d).  In order to sever a benefit, the VA must demonstrate not only that that VA has followed the applicable procedural safeguards of 38 C.F.R. §§ 3.103(b)(2) and 3.105(d) and (i), but also that the granting of the original benefit was "clearly and unmistakably erroneous."  See Daniels v. Gober, 10 Vet. App. 474, 478 (1997).  The burden of proof in such a case is on the Government (the Secretary).  38 C.F.R. § 3.105(d).  The Court has held that the strict evidentiary standard for CUE is equally applicable to VA where the issue is severance of a benefit.  Once a benefit has been granted, 38 C.F.R. § 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and the Secretary meets his high burden of proof.  Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) ("In effect, § 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned").

However, in the present case, the Board finds that a severance of service connection for asthma did not actually occur under the provisions of 38 C.F.R. § 3.105(d).  Even though the effective date for the award of service connection for asthma was changed by the AOJ from September 23, 2014, to September 14, 2017, on the basis of CUE, service connection for asthma remained in place.  In other words, service connection for asthma in a substantive sense was not terminated or discontinued or severed.  Rather, the effective date for service connection was changed from September 23, 2014, to September 14, 2017.  Service connection for the asthma disability remained in effect on the basis of the in-service incurrence of the disorder.  Service connection was not severed as a VA benefit.  In summary, an analysis of severance of service connection under the provisions of 38 C.F.R. § 3.105(d) is not warranted here.  

Rather, the central issue in this case is whether the October 2021 Board decision that awarded the Veteran a higher initial 100 percent rating for asthma intended this initial rating to be effective from September 23, 2014.  In this vein, the June 2021 rating decision was the rating decision on appeal at the time of the October 2021 Board decision.  The June 2021 rating decision had originally granted service connection for asthma with a 60 percent rating effective from September 23, 2014.  The Board increased this rating to 100 percent.  The question to analyze is whether the Board's October 2021 Board decision "subsumed" the June 2021 rating decision of the AOJ on the assignment of the initial effective date of September 23, 2014, for the award of service connection for asthma. 

On this point, not all AOJ decisions are subject to revision on the basis of clear and unmistakable error (CUE).  If a determination by an AOJ is affirmed by the Board on direct appeal, the AOJ's earlier rating decision is "subsumed" by the Board's decision and can no longer be challenged on the basis of CUE.  38 C.F.R. § 20.1104.  See also VAOPGCPREC 14-95 (May 12, 1995) (only the Board decision which subsumes the AOJ decision may be reviewed for CUE (and this review can only be done by the Board)).  Another VA regulation provides that decisions of an AOJ on issues that have been decided on appeal by the Board or by a court of competent jurisdiction are not subject to revision under this subsection (i.e., not subject to revision based on a finding of CUE).  See 38 C.F.R. § 3.105(a)(1)(v).  Moreover, an AOJ decision, even if not appealed to the Board, may also be subsumed by a later Board decision on the same claim, so long as the later Board's decision addressed all the evidence of record and adjudicated the claim on the merits.  Morris v. West, 13 Vet. App. 94, 96 (1999) (discussing the doctrine of "delayed subsuming").  

In any event, after being subsumed by a Board decision, the AOJ decision cannot be challenged using a CUE claim.  Rather, a CUE motion must be filed challenging the latter Board decision that subsumed the earlier AOJ decision.  See 38 U.S.C. §§ 5109A, 7104(b); Brown v. West, 203 F.3d 1378, 1380-82 (Fed. Cir. 2000); Talbert v. Brown, 7 Vet. App. 352, 355 (1995) [prior AOJ decisions which are affirmed by the Board are subsumed by the final appellate decision].  In other words, in order to reverse the AOJ's decision subsumed by a latter Board decision, the claimant must collaterally attack the latter Board decision.  

Applying this law to the facts of the present case, in a June 2021 Board decision, the Veteran was awarded service connection for asthma.  In a June 2021 rating decision, the AOJ implemented the Board's award of service connection for asthma.  The AOJ assigned a 60 percent rating for asthma, effective from September 23, 2014, the date of the Veteran's original Application for Compensation (VA Form 21-526) for service connection.  In a September 2021 VA Form 10182 (NOD), the Veteran appealed the AOJ's June 2021 rating decision that had assigned only a 60 percent rating for asthma.  The Veteran sought a higher 100 percent rating for asthma.  In an October 2021 Board decision, the Board awarded the Veteran a higher initial rating for asthma of 100 percent.  But significantly, the Board pointed out that the AOJ's June 2021 rating decision on appeal before the Board at that time had awarded service connection for asthma, effective from September 23, 2014.  And of even greater significance, the Board in its FINDINGS OF FACTS stated that the 100 percent rating now assigned for asthma was effective "for the entire appellate period."  Therefore, it is clear in its October 2021 Board decision the Board had intended for the effective date for the award of service connection for asthma to be retroactive to September 23, 2014.  

In addition, in the October 2021 Board decision, the Board had the option to assign the 100 percent rating for asthma during a specific time period that differed from the time period previously established by the AOJ (in other words the Board could have staged the 100 percent rating for asthma for a different period in time).  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  But notably, the Board did not restage the initial rating for asthma.    

It follows that the effective date for the award of service connection for asthma (September 23, 2014), originally assigned by the AOJ in the June 2021 rating decision, was in essence affirmed by the Board on direct appeal in the October 2021 Board decision.  Hence, the AOJ's earlier June 2021 rating decision was "subsumed" by the Board's October 2021 decision and could not be challenged on the basis of CUE.  See 38 C.F.R. §§ 3.105(a)(1)(v); 20.1104.  Yet this is what the AOJ did in the subsequent October 2021 rating decision on appeal  the AOJ inappropriately determined there was CUE in its earlier June 2021 rating decision that had assigned an effective date of September 23, 2014, for the award of service connection for asthma.  The AOJ ignored the language of the October 2021 Board decision.  The AOJ improperly changed this effective date to September 14, 2017, despite the fact that the October 2021 Board decision had "subsumed" the AOJ's June 2021 rating decision.  The October 2021 Board decision that subsumed the earlier rating decision confirmed the assignment of an effective date of September 23, 2014, for the award of service connection for asthma and an initial 100 percent rating for asthma.  For only the October 2021 Board decision could be subject to a CUE challenge.  And only the Veteran or the Board itself can make this CUE challenge of a Board decision, not the AOJ.  It is improper for a lower tribunal (the AOJ) to review the decision of a higher tribunal (the Board).  See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000).  In the present case, the Board declines to reverse its earlier October 2021 determination regarding the assigment of the September 23, 2014, effective date for the award of service connection for asthma, on the basis of CUE.

As such, the date of claim for service connection for asthma is September 23, 2014.

The term "date entitlement arose" is not defined in the current statute or regulation.  However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought.  This is determined on a "facts found" basis.  See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  Arguably, the criteria for entitlement to service connection for asthma were met as early as February 1, 1961, the first day after separation from service for the Veteran.  See 38 C.F.R. § 3.303(a)-(b).  In this regard, the Veteran has provided lay and clinical evidence of record documenting that his asthma has existed since at least from the time of his military service.  

That notwithstanding, the law is clear.  The effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).  Thus, regardless if entitlement arose for the Veteran's asthma prior to the September 23, 2014, claim for service connection for same, the effective date for the grant of service connection for this disability cannot be earlier than the date the claim was received, which is September 23, 2014.  This is the earliest possible effective date for service connection for asthma, given the particular fact pattern of this Veteran's case.  

Accordingly, the Board concludes that September 23, 2014, the date the Veteran filed his original formal claim for service connection for asthma, is the proper effective date for the award of service connection for asthma and the assignment of an initial 100 percent rating for same.  38 U.S.C. § 5107(b).  

(Neither the Veteran nor his attorney has requested an effective date earlier than September 23, 2014, for the award of service connection for asthma, and no evidence of record suggests an earlier effective date for asthma based on any earlier claim in the claims file). 

II.  SMC Aid and Attendance at the "L" Level

At the outset, for the SMC Aid and Attendance (A&A) issue on appeal, since this is an AMA case involving the Evidence Submission Lane, the Board may only consider the evidence of record dated on or before November 15, 2021 (the date of notice of the AMA rating decision); evidence submitted by the Veteran or his attorney along with the November 1, NOD (VA Form 10182); and finally, any evidence submitted by the Veteran or his attorney within 90 days following receipt of the November 1, 2021 NOD (VA Form 10182)  but only to the extent it pertains to the period of time dated prior to November 15, 2021.  See 38 C.F.R. §§ 3.103(c)(2), 20.300, 20.303(a)-(b), 20.801(a).  

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 generally 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VA Gen. Coun. Prec. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability).  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)-(t).  SMC is payable in addition to the basic rate of compensation otherwise payable for the degree of disability.  

The Veteran has been awarded a permanent and total (P&T) rating due to his service-connected disabilities.  There is no question he is severely disabled. 

Here, the evidence of record raises the issue of whether the Veteran is entitled to an additional benefit of SMC based on the need for regular aid and attendance, at the rates set forth under 38 U.S.C. § 1114(l), is warranted.  See 38 C.F.R. § 3.155(d)(2); Akles, 1 Vet. App. at 121.  This is known as SMC at the "L" level.

SMC under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if a veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); is permanently bedridden; is a patient in a nursing home because of mental or physical incapacity; or is so helpless as to be in need of regular aid and attendance of another person (emphasis added).  See also 38 C.F.R. § 3.351(c).  

At the outset, the medical and lay evidence of record does not demonstrate the following: an anatomical loss or "loss of use" of both feet, or of one hand and one foot; blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); or permanent bedridden status.  See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).  In this regard, bedridden, i.e., the Veteran is actually required to remain in bed, will be a proper basis for the determination.  The fact that a Veteran 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.  38 C.F.R. § 3.352(a).  In any event, there is no clinical assessment or lay evidence in the record showing that the Veteran is "bedridden."  Moreover, the Veteran is not blind.  In addition, the Veteran is not a patient in a nursing home.  

With regard to potential "loss of use" of one hand and one foot, the Board acknowledges a recent, separately docketed February 2022 Board decision remanded the issues of increased ratings in excess of 10 percent and 30 percent for frostbite of the third finger of the right hand with osteoarthritis.  This remand was for the purpose of securing a VA medical opinion to determine whether the Veteran has "loss of use" of the right hand or its functional equivalent, and to determine whether a separate rating is warranted for the Veteran's partial amputation of the 3rd finger of his right hand.  At the present time, the AOJ is in the process of securing this VA medical opinion for his R hand.  Regardless, to meet the criteria for SMC at the "L" level, loss of use of one foot is also required.  In this respect, there is no medical or probative lay evidence alleging or demonstrating "loss of use" of either foot for the Veteran.  See 38 C.F.R. §§ 3.350(a)(2)(i), 4.63; Tucker v. West, 11 Vet. App. 369, 373 (1998) (holding that the relevant inquiry for "loss of use" is not whether amputation is warranted but whether the veteran has any effective function remaining other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance, with pain and functional loss considered as factors).  The Veteran is not service connected for any foot disability or other lower extremity disability.  VA treatment records dated from 2015 to 2021 also confirm that despite shortness of breath and fatigue stemming from his service-connected asthma, the Veteran is still able to ambulate with assistive devices around his home and outside his home.  As such, absent any probative evidence in the record of loss of use of either foot due to a service-connected disability, an SMC rating at the "L" level under 38 U.S.C. § 1114(l) is not warranted on the basis of loss of use of both one hand and one foot.   

As such, the Veteran does not meet any of the above listed criteria for an SMC rating at the "L" level under 38 U.S.C. § 1114(l).  

However, SMC under 38 U.S.C. § 1114(l) is also payable, when, as a result of a service-connected disability, the veteran is so helpless (due to physical or mental incapacity), that he or she requires the regular aid and attendance of another person to perform the personal functions required in everyday living.  38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.351(b), 3.352(a).  This is considered SMC at the "L" level.

Initially, the Board notes that effective from September 23, 2014, the Veteran is in receipt of a 100 percent total schedular rating for his service-connected asthma.  In any event, there is no statutory or regulatory threshold requirement for a total 100 percent rating, in order to be eligible for entitlement to SMC based on the need for regular aid and attendance.  See 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.351(b), 3.352(a).  The Court has specifically limited the requirement for a single 100 percent disability to the question of entitlement to SMC for housebound benefits, with no mention of SMC for aid and attendance.  See Bradley v. Peake, 22 Vet. App. 280, 293 (2008).

In light of the above findings in the present Board decision, the Veteran has the following service-connected disabilities: asthma, rated as 100 percent disabling; frostbite and osteoarthritis of the 3rd finger of the right hand, rated as 30 percent disabling; chronic adrenal insufficiency, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and allergic rhinitis, rated as 0 percent disabling.  The combined service-connected disability rating is 100 percent.  See 38 C.F.R. § 4.25 (combined ratings table).  

In determining the need for regular aid and attendance of another person, the following will be accorded consideration:  Inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the 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 a claimant from the hazards or dangers incident to his or her daily environment.  38 C.F.R. § 3.352(a).

Bedridden, i.e., the Veteran is actually required to remain in bed, will be a proper basis for the determination.  The fact that a veteran 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.  38 C.F.R. § 3.352(a).

It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made.  See Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all).  The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her condition as a whole.  It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need.  Determinations that the Veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the veteran's condition is such as would require him or her to be in bed.  They must be based on the actual requirements of personal assistance from others.  38 C.F.R. § 3.352(a).  

The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.  38 C.F.R. § 3.352(c).

In determining whether SMC is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

Upon review of the evidence, SMC on account of the need for regular aid and attendance of another person under 38 U.S.C. § 1114(l) is granted.  See 38 U.S.C. § 1114(l), 38 C.F.R. §§ 3.350(b), 3.352(a).  In making this determination, the Board has considered both the lay and medical evidence of record.  The Veteran is 81 years of age.  He lives in a home with his wife and daughter who help take care of him.  He uses a walker and sometimes a wheelchair to ambulate.  He is always tired and loses his breath easily.  He requires assistance preparing meals and with various activities of daily living.  He cannot protect himself from the hazards of his daily environment.  With regard to the factors of aid and attendance, the Veteran meets the criteria for the need of the aid and attendance of another person, due to the impact of the combination of his service-connected asthma, chronic adrenal insufficiency, and right hand disabilities, or based on the impact of his service-connected asthma alone.  38 C.F.R. § 3.352(a).  Both medical and lay evidence of record is supportive of the SMC (A&A) claim.

In particular, when examining the factors listed under 38 C.F.R. § 3.352(a), the following evidence of record demonstrates that the basic requirements for SMC A&A are met:

A September 2017 respiratory conditions DBQ (VA Form 21-0960L-1) submitted by a private physician assessed that the Veteran's "severe" asthma and severe COPD impact his ability to work, with exacerbations making him unable to perform activities of daily lives "at times."  The private physician, Dr. G.L.M., noted the occurrence of two to three "extremely severe" asthma exacerbations in the past 12 months.  

A December 2018 VA cardiology note observed the Veteran was ambulating in a wheelchair and walker, but this was due to his nonservice-connected atrial fibrillation.  He was eventually hospitalized for atrial fibrillation in February 2019 for two months.  (A recent December 2021 rating decision denied both service connection and secondary service connection for the Veteran's atrial fibrillation).

In November 2019, the Veteran underwent an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680), performed by his VA primary care physician  Dr. E.S., MD.  As his treating VA physician, Dr. E.S. was knowledgeable about the Veteran's medical problems.  Dr. E.S. assessed that the Veteran's atrial fibrillation and restrictive lung disease restrict the Veteran's activities / functions.  He cannot prepare his own meals due to limited mobility.  He needs a wheelchair and walker for locomotion  he can only travel one block.  However, he is not hospitalized or bedridden.  His upper extremities were normal.  The Board points out that when considering the respective impact of the Veteran's service-connected asthma vs. his nonservice-connected restrictive lung disease, the respiratory symptomatology and resulting functional loss from both disabilities cannot be distinguished.  In this regard, when the signs and symptoms of a service-connected disability cannot be distinguished from those attributable to a nonservice-connected condition, all signs and symptoms that cannot be distinguished must be attributed to the service-connected condition.  Mittleider v. West, 11 Vet. App. 181, 192 (1998). 

An August 2020 Request for Employment Information (VA Form 21-4192)  completed by a representative of Internal Medicine Associates of New Orleans, documented the Veteran worked in a part-time capacity as a physician from February 15, 2017, to September 20, 2018.  The concessions made to the Veteran regarding his disabilities were restrictive airway disease and service-connected severe asthma that is steroid dependent.  (The issue of whether entitlement to TDIU is warranted has already been remanded for further development in a separate February 2022 Board remand).  

 

A November 2020 VA cold injury residuals examination for the Veteran's service-connected frostbite of the right hand assessed that the Veteran's scapholunate ligament tear of the right hand and osteoarthritis of the radiocarpal joint and right 3rd digit frostbite impairs picking up and lifting things and opening doors.  He experiences pain and numbness and changes in color in the right hand that cause this functional impairment. 

A March 2021 VA respiratory examination documented the Veteran's current symptoms of shortness of breath upon only "mild to moderate" physical exertion.  The VA examiner determined that his service-connected asthma resulted in "decreased productivity and efficiency related to breathlessness and] easy fatigue with low endurance during all physical activity, which requires the [Veteran] to frequently take rest breaks to recover and take rescue medications."

A May 2021 VA endocrinology note observed the Veteran was able to ambulate with a walker.  His service-connected respiratory symptoms included exertional shortness of breath and intermittent wheezing.  

An October 2021 VA chronic fatigue examination noted "debilitating fatigue" with very little to no energy on a daily basis.  He cannot exercise.  The VA examiner determined the Veteran did not have chronic fatigue syndrome.  However, the Board finds that contemporaneous VA medical records support the conclusion that a significant part of this "debilitating fatigue" that impairs the Veteran's ability to perform activities of daily living is due to his service-connected asthma and chronic adrenal insufficiency disabilities.  

An October 2021 VA endocrine examination confirmed that the Veteran's service-connected chronic adrenal insufficiency also causes the Veteran's documented chronic fatigue. 

VA cardiology treatment records dated in November 2021 recorded that the Veteran finds it necessary to ambulate with a walker.  This is from his service-connected lung disease / asthma and his nonservice-connected atrial fibrillation.  

In January 2022, the Veteran underwent an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680), performed by his VA primary care physician  Dr. E.S., MD.  As his treating VA physician for many years, Dr. E.S. was knowledgeable about the Veteran's medical problems in the past few years.  Dr. E.S. assessed that the Veteran's service-connected restrictive lung disease / asthma and service-connected adrenal insufficiency restricted the Veteran's activities / functions.  He cannot prepare his own meals.  His lung disease causes limited physical endurance.  Most importantly, Dr. E.S. assessed that the Veteran requires help to perform activities of daily living.  However, he is not hospitalized or bedridden, and his upper extremities were normal.  Once again, since this VA examination was submitted to the Board within 90 days of the November 1, 2021, NOD (VA Form 10182), the Board has considered this January 2022 VA aid and attendance examination, as it also relates to the period dated prior to the November 15, 2021, notification of the AOJ rating decision on appeal).  See again 38 C.F.R. §§ 3.103(c)(2); 20.300, 20.303(b)(1), 20.801(a).  

With regard to lay evidence, the Board has reviewed the Veteran's lay submissions throughout the entire appeal.  He has indicated that his service-connected disabilities require the regular aid and attendance of another person.  This person is generally his wife, but also his daughter.  His service-connected asthma and chronic adrenal insufficiency requires that he use a walker and sometimes a wheelchair to ambulate.  He has chronic pain and numbness and tingling to his service-connected right hand making it difficult to pick-up, lift, grasp, and hold various objects and open doors.  His attorney asserts the Veteran is "severely ill."  He has begun to receive home health care assistance through VHA approval that will last the rest of his life.  He is being cared for around the clock by his wife and daughter.  He feels he is permanently disabled and unable to work.  His physical and mental incapacity due to his service-connected disabilities requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment.  His wife and daughter are essential to his survival.  See January 2020 Veteran statement; December 2020 Motion for Advancement on the Docket; September 2021 supplemental statement by attorney; November 2021 supplemental statement supporting claim by attorney; and November 2021 "VA Form 10182 Statement" from attorney.  

On the issue of lay evidence, competent lay evidence is any evidence provided by a person who has knowledge of facts or circumstances and conveys matters from observable circumstances, such as the present Veteran.  See 38 C.F.R. § 3.159(a)(2); Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  The Veteran is competent and credible in his description of the severe, disabling effects of his service-connected disabilities causing the need for the aid and attendance of another person.  Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  His lay statements are internally consistent.  His lay statements are also consistent with the clinical findings in VA and private treatment records and VA examinations as well.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (stating that reports made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care).  In any event, the Board emphasizes that it would not automatically favor medical evidence over lay evidence.  English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).  In the present case, the Veteran's lay statements are entitled to great probative weight in support of his SMC claim based on the need for aid and attendance.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board, as fact finder, is responsible for assessing the credibility, competence, and probative value of evidence).

In summary, in light of the above evidence, the Veteran meets several, but not all, of the factors of aid and attendance.  See Turco, 9 Vet. App. 224 (eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all).  The above evidence reflects the necessity of the regular need for aid and attendance of another family member or person, due to the collective impact of the Veteran's service-connected asthma, chronic adrenal insufficiency, and right hand disabilities, or based on the impact of his service-connected asthma alone.  38 C.F.R. § 3.352(a).  Simply stated, it does not appear the Veteran would be able to take care of himself without the regular assistance of another person  usually his spouse or daughter.

Consequently, resolving any doubt in the Veteran's favor, the medical and lay evidence above supports SMC for regular aid and attendance (A&A) at the "L" level, based on the collective impact of his service-connected asthma, chronic adrenal insufficiency, and right hand disabilities, or based on the impact of his service-connected asthma alone.  38 U.S.C. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.350, 3.352.  The SMC A&A claim is therefore granted.  

III.  SMC Housebound at the "S" Level

At the outset, for the SMC housebound issue on appeal, since this is an AMA case involving the Evidence Submission Lane, the Board may only consider the evidence of record dated on or before November 15, 2021 (the date of notice of the AMA rating decision); evidence submitted by the Veteran or his attorney along with the November 1, NOD (VA Form 10182); and finally, any evidence submitted by the Veteran or his attorney within 90 days following receipt of the November 1, 2021 NOD (VA Form 10182) - to the extent it pertains to the period of time dated prior to November 15, 2021.  See 38 C.F.R. §§ 3.103(c)(2), 20.300, 20.303(a)-(b), 20.801(a).  

The Board must address entitlement to SMC housebound benefits at the "S" rate.  This SMC housebound issue has been frequently raised by the Veteran and his attorney's submissions during the course of the appeal.  See 38 C.F.R. § 3.155(d)(2); Akles, 1 Vet. App. at 121.  

The fact that payment at the SMC "L" rate for aid and attendance is a greater benefit than payment at the SMC "S" rate does not "moot out" the issue of entitlement to the lesser benefit, as the Veteran may be entitled to both benefits.  Provided that the disability or disabilities which render the Veteran eligible for SMC aid and attendance are separate and distinct from that or those which entitle him to SMC housebound.  Compare 38 U.S.C. §§ 1114(l) with 38 U.S.C. §§ 1114(s).  

SMC benefits by reason of being housebound are payable under 38 U.S.C. § 1114(s) if the Veteran has a single disability rated as 100 percent disabling (as total), and has either:

(1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or 

(2) is "permanently housebound" by reason of service-connected disability or disabilities.  

38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  

The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.  38 C.F.R. § 3.350(i)(1).

In the alternative to the 60 percent or more rating, the "permanently housebound" requirement is met if a 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 or her lifetime.  38 C F R § 3.351(i)(2).  The disability or disabilities that make the Veteran "permanently housebound" need not be separate and distinct from the 100 percent service-connected disability.  However, the Court has held that leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC housebound benefits.  Howell v. Nicholson, 19 Vet. App. 535, 540 (2006).  In other words, one can leave the home for medical purposes and still be considered "permanently housebound" under VA law.  

Turning now to the requirement for a single disability rating at 100 percent, the Federal Circuit has held housebound benefits are not available to a veteran whose total 100 percent disability rating is based on multiple disabilities, none of which is individually rated at 100 percent disabling.  Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); VAOPGCPREC 66-91 (Aug. 15, 1991).

However, for the purpose of meeting this criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extra-schedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating).  See VAOPGCPREC 2-94 (February 2, 1994).

In Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court subsequently confirmed that a grant of TDIU based on a single disability constitutes a "service-connected disability rated as total" for purposes of meeting housebound benefits under section 1114(s).  In other words, a TDIU rating based on a single disability, but not multiple disabilities, is permitted to satisfy the statutory requirement of a total rating.  Bradley, 22 Vet. App. at 293.  The Court explained there could be a situation where a Veteran has a 100 percent schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service-connected disability in order to qualify for SMC housebound benefits under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate).  Id. at 292-94.  Nonetheless, the TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits.  Id. at 293.  

In addition, the decision to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) is specifically limited to TDIU ratings.  That is, a TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C. § 1114(s).  Id. at 290-91.  In fact, the Court in another case subsequently confirmed that a "TDIU rating that is based on multiple disabilities cannot satisfy the section 1114(s) requirements of 'a service-connected disability' because that requirement must be met by a single disability."  Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010).  The Court subsequently added that a TDIU based on multiple service-connected disabilities that are considered as "one disability" under 38 C.F.R. § 4.16(a) (for example, disabilities affecting a single body system or common etiology) may not be used to establish "a service-connected disability rated as total" for SMC housebound eligibility pursuant to § 1114(s).  Youngblood v. Wilkie, 31 Vet. App. 412, 416-18 (2019).  

Regardless, VA's duty to maximize benefits requires VA to assess all of a claimant's disabilities, regardless of the order in which they were service connected, to determine whether any combination of disabilities establishes housebound benefits under 38 U.S.C. § 1114(s).  Buie, 24 Vet. App. at 249-250.  

Upon review of the evidence, SMC benefits by reason of being housebound are denied.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  

As to the initial statutory housebound requirement, the Veteran has a single disability rated as 100 percent disabling (as total) asthma.  It follows that the Veteran meets this initial criterion for the statutory housebound requirement.  See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  

However, the Veteran does not have additional service-connected disabilities independently ratable at 60 percent or more when combined.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1).  That is, the Veteran has the following service-connected disabilities in addition to his asthma:  frostbite and osteoarthritis of the 3rd finger of the right hand, rated as 30 percent disabling; chronic adrenal insufficiency, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and allergic rhinitis, rated as 0 percent disabling.  However, these other service-connected disabilities only combine to 50 percent.  See 38 C.F.R. § 4.25 (combined ratings table).  Therefore, the Veteran does not meet the 60 percent additional rating requirement for statutory housebound benefits during the appeal.  In making this determination, the Board emphasizes that the disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability (or TDIU based disability) and involve different anatomical segments or bodily systems, which they are here.  But they still only combine to 50 percent, which does not meet the necessary statutory criteria for housebound benefits.  38 C.F.R. § 3.350(i)(1); Bradley, 22 Vet. App. at 293.

Additionally, when considering entitlement to housebound-in-fact, the Veteran was not "permanently housebound" by reason of service-connected disability or disabilities.  38 C.F.R. § 3.350(i)(2).  In reaching this conclusion, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities neither confine him to his dwelling and the immediate premises, nor require permanent institutionalization at any time during the time frame that is the subject of the appeal.  

With regard to lay evidence on the issue of being "permanently housebound", on multiple occasions, the Veteran through his attorney contended that he was "permanently housebound" because he was substantially confined to his house due to his service-connected disabilities, reasonably certain to continue throughout his lifetime.  He requires a caregiver to take care of him in his home.  He particularly emphasized the impact of his service-connected asthma and service-connected chronic adrenal insufficiency.  But in addition, the impact of his service-connected right hand was asserted as well, as he has alleged "loss of use" of the right hand exists.  See September 2021 supplemental statement by attorney; November 1, 2021, VA Form 10182 / NOD; and November 2021 "VA Form 10182 Statement" from attorney.

With regard to clinical evidence and other evidence on the issue of being "permanently housebound", there is no support in the record for the Veteran being permanently housebound or substantially confined to his house or immediate premises as a direct result of his service-connected disabilities during the appeal, let alone any clinical evidence showing it is reasonably certain that the disability or disabilities and any resultant confinement would continue throughout his lifetime.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2).  In this regard, the Veteran was able to at least leave the home to work part-time as a physician for 24 hours per week up until September 20, 2018.  See e.g., August 2020 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940); August 2020 Request for Employment Information (VA Form 21-4192).  Also, a November 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) by the Veteran's VA primary care physician reflected that there are "no limitations on leaving his home or immediate premises."  VA treatment records dated from 2019 to 2021 and VA examinations from that timeframe record that the Veteran was able to ambulate with a walker, and sometimes without a walker.  He exhibited chronic shortness of breath and fatigue due to his service-connected disabilities.  His service-connected right hand impairs picking up and lifting things and opening doors.  But he could still drive his vehicle.  Finally, a January 2022 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) by the Veteran's VA primary care physician reflected that there are "no limitations on leaving his home or immediate premises."  

With regard to being "permanently housebound" by reason of service-connected disability or disabilities, the Veteran lay assertions to the contrary on this matter are outweighed by the clinical and other evidence of record.  In this regard, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases.  English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).  Importantly, on two occasions, the VA housebound examiner, who is also the Veteran's primary care physician of many years, specifically concluded the Veteran was not housebound by his disabilities.  This VA examiner also did not observe any upper extremity impairments on those occasions.  These medical records were generated with a view towards ascertaining his then-state of physical fitness - they are akin to statements of diagnosis and treatment and are of increased probative value.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997).  In this respect, contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).  Therefore, despite his lay assertions to the contrary, the most probative evidence of record establishes that the Veteran is not "permanently housebound" by reason of service-connected disability or disabilities.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2).  As such, he does not meet the SMC housebound criteria at the "S" level on this basis. 

Finally, for a statutory housebound 100 percent rating, the Board has also considered whether a single service-connected disability rated as less than 100 percent (thus separate from the Veteran's asthma disability) nevertheless supports a TDIU in the present case.  Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that a TDIU rating could qualify for compensation at the 38 U.S.C. § 1114(s) rate, but only if the TDIU was based on a single disability).  Naturally, if a service-connected disability other than the Veteran's asthma disability was the basis for a TDIU award, the statutory requirements for payment of SMC at the housebound rate would be met, because the other service-connected disabilities (asthma, etc.) already have a combined 100 percent disabling (which is at least 60 percent disabling).  See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1).  That is, under VA's duty to maximize benefits, VA must consider whether any service-connected disability alone (such as the Veteran's right hand disability), warrants the assignment of a TDIU rating.  If so, the statutory requirements for payment of SMC at the housebound rate are met, because the other service-connected disabilities have a combined disability rating of at least 60 percent.  See again Buie , 24 Vet. App. at 250.

With this in mind, the Board finds that a TDIU award could not be based on the effects of a single disability alone  specifically, the Veteran's service-connected frostbite of the third finger of the right hand with osteoarthritis, rated as 30 percent disabling.  In particular, the following evidence of record fails to establish that the Veteran's service-connected right hand disability alone rendered him unable to secure or follow a substantially gainful occupation per 38 C.F.R. § 4.16, for the evidence of record dated prior to the November 15, 2021, notification of the rating decision on appeal: 

The Veteran was able to work part-time over the poverty threshold as a hospital physician until September 2018.  The Veteran himself has asserted that the combination of his service-connected disabilities, as opposed to one disability alone (such as his right hand), prevented gainful employment after that date.  See e.g., August 2020 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940).  Moreover, on two occasions in November 2019 and January 2022, a VA housebound examiner, who is also the Veteran's primary care physician of many years, did not observe any upper extremity impairments when conducting his examination of the Veteran.  On numerous other occasions in the record, examinations of the upper extremities were normal.  See e.g., July 2018 VA endocrinology note; October 2018 VA nephrology consult; November 2018 VA nephrology note; November 2018 VA cardiology consult; December 2018 VA cardiology note; July 2019 VA pulmonary consult; May 2019 VA endocrinology note; September 2019 VA endocrinology note; October 2019 VA pulmonary note; January 2020 VA pulmonary note; February 2020 VA endocrinology note; November 2020 VA endocrinology note; May 2021 VA endocrinology note; and August 2021 VA physician emergency department note.  However, VA examinations and DBQ of record from both VA and private physicians from 2015 to 2020 do document that his service-connected right hand disability manifests in pain and numbness and weakness and fatigue and changes in color and thinning skin (atrophy).  This causes functional impairment such as difficulty picking up and lifting things and opening doors and decreased ROM and decreased grip strength.  His right hand was assessed as impacting his ability to work.  See also July 2015 private physician letter.  Regardless, there is not an approximate balance of the evidence that demonstrates his service-connected right hand disability alone rendered him unable to secure or follow a substantially gainful occupation during the appeal pursuant to 38 C.F.R. § 4.16.

Consequently, the requirements for SMC housebound benefits at the "S" level are not met.  38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. § 3.350(i).  The SMC housebound claim is therefore denied.   

(The Board again acknowledges a recent, separately docketed February 2022 Board decision remanded the issues of increased ratings in excess of 10 percent and 30 percent for frostbite of the third finger of the right hand with osteoarthritis.  This remand was for the purpose of securing a VA medical opinion to determine whether the Veteran has "loss of use" of the right hand or its functional equivalent, to describe its functional limitations, and also to determine whether a separate rating is warranted for partial amputation of the 3rd finger of his right hand.  At the present time, the AOJ is in the process of securing this VA medical opinion for the Veteran's right hand.  However, the Board does not conclude that the current appeal is intertwined with the Board's separate February 2022 remand of the increased rating issues for the right hand.  In this regard, under the AMA, the Board treats issues on appeal in isolation to the extent possible to honor veterans' choices under the new system.  Moreover, if the development requested by the Board in the February 2022 Board remand for the right hand disability ends up being favorable, the Veteran can always file a supplemental claim accompanied by new and relevant evidence within one year of notification of the current Board decision, thus preserving the initial effective date of any benefit ultimately granted by the AOJ.  See 38 C.F.R. §§ 3.160(a), 3.2500(h), 3.2501, 20.1105).

IV.  SMC at the "P" Level

At the outset, for the SMC at the "P" level issue on appeal, since this is an AMA case involving the Evidence Submission Lane, the Board may only consider the evidence of record dated on or before November 15, 2021 (the date of notice of the AMA rating decision); evidence submitted by the Veteran or his attorney along with the November 1, NOD (VA Form 10182); and finally, any evidence submitted by the Veteran or his attorney within 90 days following receipt of the November 1, 2021 NOD (VA Form 10182) - to the extent it pertains to the period of time dated prior to November 15, 2021.  See 38 C.F.R. §§ 3.103(c)(2), 20.300, 20.303(a)-(b), 20.801(a).  

SMC at the "P" level assigns whole or half steps of increased SMC depending on the combination of disabilities shown.  See 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(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 can be complicated and fact dependent.  

In the present case, the Veteran would be seeking the "L and 12" level, since in the present Board decision, he has only been granted SMC at the "L" level based on the need for regular aid and attendance.  

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 combine 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 12 step) or 100 percent (additional whole step) disabling.  See 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.  See 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). 

Most recently, the Court held that when determining SMC at the "P" rate, 38 C.F.R. § 3.350(f)(3) provides for only a single intermediate or half-step increase in SMC benefits; it does not allow for multiple half-step increases.  That is, this regulation may not be applied more than once to provide multiple "half-step" SMC increases to a veteran.  Barry v. McDonough, __ Vet. App. __, No. 20-3367 (Feb. 3, 2022).

Upon review of the evidence, SMC at the "l and 12" rate based on the presence of additional disabilities (not involved in prior SMC determinations) rated at 50 percent (additional 12 step) under 38 U.S.C. § 1114(p) is granted.  See 38 U.S.C. § 1114(p), 38 C.F.R. § 3.350(f)(3).  In making this determination, the Board has considered both the lay and medical evidence of record.  

Applying the law to the facts of the present case, in the present Board decision, the Board has already granted SMC at the "L" level based on the need for regular aid and attendance.  This award of SMC at the "L" level can be based on the impact of his service-connected asthma standing alone, as his asthma is rated as 100 percent disabling and is very severe, necessitating the need for the aid and attendance (A&A) of his family members.  In addition, the Veteran has additional service-connected disabilities (not involved in the prior SMC determination for aid and attendance at the "L" level), at a 50 percent combined rating (additional 12 step).  See 38 C.F.R. § 3.350(f)(3).  Specifically, these additional service-connected disabilities are the following: frostbite and osteoarthritis of the 3rd finger of the right hand, rated as 30 percent disabling; chronic adrenal insufficiency, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and allergic rhinitis, rated as 0 percent disabling.  Significantly, these additional service-connected disabilities are separate and distinct from the asthma disability and combine to exactly 50 percent according to 38 C.F.R. § 4.25 (combined ratings table), thus meeting the criteria of an additional 12 step under 38 U.S.C. § 1114(p). 

Based on the Veteran's entitlement to SMC under 38 U.S.C. § 1114(l) for A&A and additional service-connected 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 assigned under 38 U.S.C. § 1114(l).  See 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 12" rate) based on the presence of additional disabilities (not involved in prior SMC determinations) rated at 50 percent 

 

(additional 12 step).  38 U.S.C. §§ 1114(p), 5107(b); 38 C.F.R. § 3.350(f)(3).  The SMC "P" level claim is therefore granted.  

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P.S. Rubin, 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.