George W. Breniser v. Eric K. Shinseki, Opinion Number 09-0728, decided September 19, 2011 involved a veteran already receiving SMC for loss of use of both feet seeking a higher SMC rate based on his need for aid and attendance, when the need for aid and attendance was a result of the loss of use of both feet.
This case is a good primer on SMC for anyone confronted with a question of SMC for the first time. Essentially, section 1114 (l) grants a higher rate ($3,075) than total disability for a veteran who has a service connected loss of use of both feet, or one hand and one foot, or some types of blindness, or is permanently bedridden. Section 1114(m) grants $3,392 for a veteran with a service connected loss of use of both hands, or both legs at such a level as to prevent natural knee action with a prosthesis, or one arm and one leg, or some types of blindness, all of which renders the veteran in need of regular aid and attendance. Section (n) grants $3, 860 for loss of use of both arms at levels preventing natural elbow action with prosthesis, or anatomical loss of both legs near the hip so as to prevent the use of prosthetics, or loss of one arm and one leg, or some types of blindness. Section (o) grants $4,313 for veterans who have suffered a disability under conditions which would entitle him to 2 or more of the rates provided in 1114(l)-(n), but “no condition being considered twice in the determination”. Section (p) offers half or full step increases to the next rate for a veteran whose condition exceeds the requirements of the rate they are at, but does not qualify for the higher rate. Section (r) allows an additional aid and attendance allowance when a veteran is rated per Section (o) and is in need of regular aid and attendance.
The veteran was basically arguing the need for aid and attendance was the qualifying condition when that need arose from the veteran’s only service-connected disability pursuant to section 1114(l). The Court considered language in section 1114(o), which prohibits a condition from being considered twice, and found it a valid interpretation and then applied it to conclude that a veteran cannot establish entitlement to a higher rate of SMC under section 1114(o)—unless the need for aid and attendance arises from a disability other than that for which the veteran is already in receipt of SMC.
However, the Court did remand the case because the VA did not even consider Section (p) in its analysis.
Chief Judge Kasold dissented and pointed to the plain language of section 1114 (o) and said the veteran had loss of both feet and was in need of aid and attendance. He explains the term “no condition being considered twice” was meant to prevent a veteran from seeking a higher rating for loss of both legs by arguing this was covered by both 1114 (l) and (m).
Decided by Judges Lance and Schoelen with a dissent in part by Chief Judge Kasold.
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