Veteranclaims’s Blog

December 29, 2021

Single Judge Application; special monthly compensation (SMC) based on need for regular aid and attendance; There are four provisions in section 1114 under which a veteran may receive SMC based on the need for aid and attendance. The first level of aid and attendance is provided in subsection (l). Additional amounts for aid and attendance are available under subsection (m) for a veteran with more significant disabilities, under subsection (r) if the veteran is entitled to certain levels of SMC under other provisions of the statute, and under subsection (t) for certain veterans with residuals of traumatic brain injury.; The Board did not reconcile its discussion of a specific rate of SMC with its apparent grant of generic entitlement to SMC for aid and attendance. So, the Board’s statement of reasons or bases is insufficient because the Court cannot detect the scope of the benefit the Board granted;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-3567
EDDIE L. TURNER, SR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
LAURER, Judge: Self-represented United States Army veteran Eddie L. Turner, Sr.,
appeals a January 11, 2021, Board of Veterans’ Appeals (Board) decision granting special monthly
compensation (SMC) based on his need for regular aid and attendance. 1 Appellant generally
contends that he is entitled to a higher level of SMC.2 The Secretary responds that the Board
granted aid and attendance and that the Board’s decision was not adverse to appellant, so the Court
lacks jurisdiction.3
On November 16, 2021, the Court issued a single-judge decision dismissing the appeal of
the January 11, 2021, Board decision for lack of jurisdiction.4 On November 19, 2021, appellant
moved for single-judge reconsideration, or in the alternative, panel review. The Court will grant
single-judge reconsideration.5 And so, the Court will withdraw the November 16, 2021, decision
and issue this decision in its stead.
1 Appella nt’s Brief (Br.) a t 2-4; Record (R.) at 5-11.
2 Appella nt’s Br. a t 3.
3 Secreta ry’s Br. a t 3.
4 Turner v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 2022 (Dec. 3, 2021) (mem. dec.).
5 See U.S. VET. APP. R. 35.
2
The issue before the Board was whether appellant was entitled to SMC based on his need
for aid and attendance. The Board found that appellant was entitled to SMC for aid and attendance
and granted his claim. 6 But the Board’s decision was unclear about whether it only granted
entitlement to SMC for aid and attendance generally or whether it also granted a specific rate of
SMC for aid and attendance that could be appealed. Since the Court cannot discern the scope of
the benefit the Board granted, the Court’s review of the Board’s decision is frustrated. Thus, the
Court will remand the matter for the Board to provide an adequate statement of reasons or bases
explaining the scope of its decision.7
I. ANALYSIS
The Court finds that it would help to first review the procedural history of appellant’s SMC
claim. Appellant filed an SMC claim in April 2013 based on his need for aid and attendance.8 The
VA regional office (RO) denied this claim in April 2014 and October 2014 rating decisions. 9 An
October 2017 Statement of the Case (SOC) continued the denial of entitlement to SMC based on
the need for aid and attendance.10 Appellant appealed that same month.11 The RO then issued a
Supplemental SOC (SSOC) continuing the denial of SMC based on the need for aid and
attendance.12
In a January 2018 decision, the Board denied entitlement to SMC based on the need for aid
and attendance. 13 This Court set aside the Board’s decision and remanded the matter for
readjudication in March 2019.14 Then, in an August 1, 2019, decision, the Board remanded the
6 R. at 5.
7 The Court notes that the scope of the benefit granted by the Board is unclear, but to the extent that Board’s
grant of SMC for aid and attendance is a favorable determination, the Court will not disturb it. See Medrano v.
Nicholson, 21 Vet.App. 165, 170 (2007) (finding that the Court cannot reverse the Board’s favorable findings of fact),
aff’d in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009).
8 R. at 4441-42.
9 R. at 4268-74, 4120-25.
10 R. at 1199-227.
11 R. at 969.
12 R. at 952-65.
13 R. at 929-38.
14 R. at 124-26.
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issue to the RO for a VA compensation and pension (C&P) exam.15 The RO issued another SSOC
in November 2020 and returned the issue to the Board.16 The Board then issued the January 11,
2021, decision on appeal, granting appellant entitlement to SMC based on his need for aid and
attendance.17
SMC is a benefit paid along with basic rates of disability compensation and is available to
veterans whose service-connected disabilities cause “additional hardships above and beyond those
contemplated by VA’s schedule for rating disabilities.”18 The multitiered rate schedule for SMC
is set forth in 38 U.S.C. § 1114 and “varies according to the nature of the veteran’s serviceconnected
disabilities.”19 There are four provisions in section 1114 under which a veteran may
receive SMC based on the need for aid and attendance. The first level of aid and attendance is
provided in subsection (l). Additional amounts for aid and attendance are available under
subsection (m) for a veteran with more significant disabilities, under subsection (r) if the veteran
is entitled to certain levels of SMC under other provisions of the statute, and under subsection (t)
for certain veterans with residuals of traumatic brain injury.

The Secretary maintains that the only matter decided by the Board was “entitlement to
SMC based on the need for regular aid and attendance” and that the Court lacks jurisdiction
because the Board’s decision was entirely favorable.20 But the Secretary’s argument assumes a
conclusion that the Board did not clearly make.21 The Board granted entitlement to SMC for aid
and attendance, but in adjudicating that claim it considered and discussed elements of the (l) rate
(a specific rate of SMC for aid and attendance) and cited the (l) rate several times as the basis for
granting SMC for aid and attendance.22 The Board did not reconcile its discussion of a specific
15 R. at 77-84.
16 R. at 20-23.
17 R. at 5-11.
18 Breniser v. Shinseki, 25 Vet.App. 64, 68 (2011).
19 Moreira v. Principi, 3 Vet.App. 522, 524 (1992).
20 Secreta ry’s Br. a t 4-5, see Holland v. Gober, 10 Vet.App. 433, 436 (1997).
21 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (declining to consider alternative grounds in support
of the Board’s decision because “‘courts may not accept appellate counsel’s post hoc rationalization for agency action’”
(emphasis omitted) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))); Martin v.
Occupational Safety & Health Rev. Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to
deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action advanced for the first
time in the reviewing court.”
22 R. at 5-11.
4
rate of SMC with its apparent grant of generic entitlement to SMC for aid and attendance. So, the
Board’s statement of reasons or bases is insufficient because the Court cannot detect the scope of
the benefit the Board granted
.
The history of appellant’s claim shows that he appealed , to the Board, the issue of
entitlement to SMC based on his need for aid and attendance.23 The Secretary’s position appears
to assume that the Board was only able to consider the entitlement issue and not the appropriate
rate.24 The scope of the Board’s jurisdiction in adjudicating SMC is an essential question, but the
Court cannot reach that question here because of the Board’s unclear statement of reasons or bases.
If the Board only adjudicated the issue of entitlement without assigning any rate, then there is no
adverse decision and the Court would lack jurisdiction. 25 But if the Board granted SMC and
assigned the (l) rate, then it implicitly denied the higher available rates of SMC for aid and
attendance, and the Court could review the propriety of those denials. 26 Because the Court cannot
tell which benefit the Board granted, the Court’s review of the Bo ard’s decision is frustrated.27
Thus, the Court will remand the matter for the Board to provide an adequate statement of reasons
or bases explaining whether it granted entitlement to SMC based on the need for aid and attendance
generally, without setting any rate, or whether it granted SMC at a specific rate, to include SMC
(l).28
II. CONCLUSION
For these reasons, appellant’s November 19, 2021, motion for single-judge reconsideration
is granted. The Court’s November 16, 2021, memorandum decision is WITHDRAWN, and this
decision is issued in its stead. The Board’s January 11, 2021, decision is VACATED to the extent
23 See R. at 20-23.
24 See Secretary’s Br. a t 4-5.
25 See Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990); see also 38 U.S.C. § 7266(a) (stating that Court review
is limited to final decisions of the Board).
26 See Turco v. Brown, 9 Vet.App. 222, 224 (1996). The Court notes that it has authority to review the Board’s
determinations of the Board’s jurisdiction. See Young v. Shinseki, 25 Vet.App. 201, 203 (2012), King v. Nicholson, 19
Vet.App. 406, 409 (2006). Thus, the Court has jurisdiction to review the Board’s finding that it either had or lacked
jurisdiction to assign a specific rate of SMC for aid and attendance. Id. But the Court’s review of that finding is
frustra ted by the Board’s unclear sta tement of reasons or bases. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
27 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
28 See Gilbert, 1 Vet.App. at 57; Tucker v. West, 11 Vet.App. 369, 374 (1998).
5
it failed to explain the scope of its favorable grant of entitlement to SMC based on appellant’s need
for regular aid and attendance, and the Court REMANDS the matter for readjudication.
DATED: December 27, 2021
Copies to:
Eddie L. Turner, Sr.
VA General Counsel (027)

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