Gray v. McDonough
| Docket Number | 22-6622 |
| Decision Date | 15 December 2023 |
| Parties | Alan M. Gray, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee |
| Court | United States Court of Appeals For Veterans Claims |
Note Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.
Molly Steinkemper, Esq. VA General Counsel
Before FALVEY, Judge.
Army veteran Alan M. Gray, through counsel, appeals that part of the July 27, 2022, Board of Veterans' Appeals decision that denied entitlement to special monthly compensation (SMC) based on housebound status before December 4, 2019. [1] This appeal is timely, the Court has jurisdiction to review the Board's decision, and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-56 (1990).
We are asked to decide whether the Board erred when it denied an earlier effective date for SMC. Because the Board correctly tied the effective date of this award to when Mr. Gray was first eligible—that is when he first had a single service-connected disability rated at 100% along with other service-connected disabilities independently ratable at 60% or more—and because Mr. Gray raises no meritorious argument, we affirm the Board's denial of SMC before December 2019.
As relevant here, SMC at the housebound rate can be paid when a veteran has a single service-connected disability rated at 100% and either has other service-connected disabilities independently ratable at 60% (or more) or is permanently housebound because of service-connected disabilities. See 38 U.S.C. § 1114(s). The law allows for "a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating." Bradley v. Peake, 22 Vet.App. 280, 293 (2008). And that's how Mr. Gray met this requirement.
As the Board explained, once the Board R. at 11. But the Board denied an effective date before December 4 2019, for SMC because before that date there were "no additional compensable disability ratings other than the prostatectomy residuals, to include fecal incontinence." Id.
Mr. Gray doesn't disagree with the Board's factual conclusions about his ratings. Instead, he argues that the Board tied the effective date of his SMC award to the wrong date of claim. To back this argument, Mr. Gray invokes 38 C.F.R. § 3.400—a regulation that ties the effective date for most claims to "the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (2023). Mr. Gray argues that his SMC claim originated with a claim filed before December 4, 2019; thus, he reasons that his effective date should reflect the date of that claim.
The problem is that the regulation sets the effective date based on the latter of the date of claim or when entitlement arose. Id. And, as the Secretary points out (and as the Board explained), Mr. Gray's entitlement to SMC arose once he had his TDIU award, thus giving him a 100% rating, and the separate 60% rated disability—here, Mr. Gray's 70% Parkinson's rating that is effective December 4, 2019. R. at 1005. Before that date, Mr. Gray simply does not meet the criteria for his award of SMC at the housebound rate.[2] Thus, under § 3.400, he can't have an effective date earlier than December 4, 2019.
The Secretary explained as much in his brief. As did the Board in the decision on appeal. But Mr. Gray didn't meaningfully challenge the Board's conclusion for why he was not eligible for SMC before December 4, 2019. And he simply ignored the Secretary's arguments when he failed to file a reply brief. This leads us to affirm the Board's denial of an earlier effective date for SMC; the Board's conclusions are not clearly erroneous and are sufficiently explained. See Allday v. Brown, 7 Vet.App. 517, 527 (1995); see also Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).
Besides pointing to the date of his claim, Mr. Gray appears to argue that the Board failed to sufficiently explain why he is not entitled to an earlier effective date. This argument has no merit. The Board gave a succinct and clear explanation; the Board denied an effective date before December 4, 2019, for SMC because, before that date, there were "no additional compensable disability ratings other than the prostatectomy...
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