Citation Nr: 1622748 Decision Date: 06/07/16 Archive Date: 06/21/16 DOCKET NO. 14-12 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an extension of a temporary total rating based on convalescence following right shoulder surgery beyond May 1, 2011. 2. Entitlement to an extension of special monthly compensation (SMC) based on being housebound (HB) beyond May 1, 2011. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Ashley Thomas, Attorney ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service in the Army from August 1976 to August 1979 and in the Air Force from July 1980 to November 1991. A death certificate shows that the Veteran died on November [redacted], 2015, of end stage renal disease, and other significant conditions contributing to his death were colon cancer, cerebrovascular accident (CVA) with left hemiplegia, congestive heart failure (CHF), and diabetes mellitus, type II. Historically, a September 2010 rating decision granted a temporary total rating based on convalescence (under 38 C.F.R. § 4.30) following right shoulder surgery on March 30, 2010, at a private medical facility, effective from March 30, 2010, until a 30 percent schedular rating was resumed on May 1, 2011. That decision also granted SMC based on HB from March 30, 2010, to May 1, 2011. In June 2011 the Veteran filed VA Form 21-526b, Veteran's Supplemental Claim, requesting an extension of the temporary total rating based on convalescence and SMC based on HB. This matter initially comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied an extension of the temporary total rating based on convalescence following right shoulder surgery and also denied SMC based on being HB. The Veteran was notified by RO letter of August 22, 2013, of a rating decision dated August 9, 2013, that (1) granted an evaluation of 50 percent for service-connected right shoulder ankylosis (previously rated as right shoulder degenerative joint disease (DJD), status post (SP) arthroplasty of the major extremity), effective September 26, 2012; (2) granted an increase from 10 percent to 60 percent for service-connected coronary artery disease (CAD); (3) confirmed and continued a 20 percent rating for service-connected diabetes mellitus; (4) confirmed and continued a 20 percent rating for left shoulder DJD, SP reconstruction of the minor extremity; (5) confirmed and continued a 10 percent rating for left lower extremity peripheral neuropathy; (6) confirmed and continued a 10 percent rating for right lower extremity peripheral neuropathy; (7) confirmed and continued a 10 percent rating for hypertension; (8) confirmed and continued a 10 percent rating for hammertoes, SP arthroplasty; (9) confirmed and continued a noncompensable rating for a history of peptic ulcer disease (PUD); and (10) denied a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). A TDIU rating had been previously denied by rating decisions in March 2008 but following a July 2008 Statement of the Case (SOC) that appeal was not perfected by filing a Substantive Appeal. A TDIU rating was also denied by an August 2010 rating decision which was not appealed. Correspondence from the Veteran's attorney, dated August 21, 2014, was received on August 22, 2014, and entitled "NOTICE OF DISAGREE - NOTICE OF INTENT TO APPEAL." The correspondence disagreed with all of the determinations of the August 2013 rating decision. The Veteran died on November [redacted] 2015. The appellant is the Veteran's surviving spouse. Subsequent correspondence from the appellant's attorney indicates that the appeal of the August 2013 rating decision is limited to the denial of a TDIU rating. In this regard, the Board notes that the Attorney fee agreements executed in November 2016 specifically state that representation is to be provided only as to the claims for temporary total rating based on convalescence following right shoulder surgery, entitlement to SMC based on HB, and a TDIU rating. In any event, no Statement of the Case (SOC) has been issued as to any claim other than the December 2013 SOC which addressed only the issues of entitlement to a temporary total rating based on convalescence following right shoulder surgery and entitlement to SMC based on HB. As no SOC has been issued as to the claim for a TDIU rating, remand of this issue is necessary for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Correspondence from the RO of February 17, 2016, reflects that the appellant has been substituted for the purposes of continuing the Veteran's appeal. During the appeal the Veteran had requested the opportunity to testify at a videoconference. In February 2016 the request, on behalf of the appellant, for the opportunity to testify was withdrawn. Also in February 2016 a rating decision granted service connection for the cause of the Veteran's death and entitlement to Dependents' Educational Assistance (DEA). There was additional VA generated evidence added to the record after the issuance of the statement of the case both prior to and after certification of the issues to the Board. The Board finds that this additional evidence was neither relevant (i.e., irrelevant, cumulative or redundant) such that the issuance of a supplemental statement of the case was required as set forth in 38 C.F.R. § 19.37(a), nor pertinent (i.e., irrelevant, cumulative or redundant) such that solicitation of a waiver was necessary as set forth in 38 C.F.R. § 20.1304(c). In regard to evidence submitted by the Veteran and his representative, the Board notes that 38 U.S.C.A. § 7105(e) provides for an automatic waiver of initial AOJ review of evidence submitted by a Veteran or his or her representative where a substantive appeal is filed on or after February 2, 2013; this provision does not apply to evidence obtained by VA. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, § 501, 126 Stat. 1165, 1190 (Camp Lejeune Act). Here, the Veteran filed his VA Form 9, Substantive Appeal, in February 2014. Therefore, the Board may properly consider the newly received evidence. The issue of entitlement to a TDIU rating is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. A temporary total rating based on convalescence following right shoulder surgery was awarded from March 30, 2010, until April 30, 2011, the maximum period of one year for the award of a convalescent rating. 2. Following termination on May 1, 2011, of a temporary total rating based on convalescence following right shoulder surgery the Veteran did not have a single disability rating 100 percent or a disability which was the basis for an award of a TDIU rating; but after May 1, 2011, he was so impaired as to be substantially confined to his immediate premises due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for extension beyond May 1, 2011, of a temporary total rating based on convalescence following right shoulder surgery are not met. 38 C.F.R. §§ 3.102, 4.30 (2015). 2. The criteria for extension of SMC based on HB beyond May 1, 2011, are met. 38 U.S.C. § 1114(s) (West 2002); 38 C.F.R. §§ 3.102, 3.350(i) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCA) imposes on VA to provide notice of how to substantiate a claim and to assist in evidentiary development. Notice VA's duty to notify was satisfied by letters August 2010 and August 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Assistance The Veteran's service treatment records (STRs), and VA and private treatment records are on file. The appellant has declined the opportunity to testify in support of the claims on appeal. In this regard, the appellant's attorney has cited to 38 C.F.R. § 3.103(c)(2) and requested that the issues be fully explained and to suggest the submission of evidence that may have been overlooked. However, that provision applies to those that preside over a hearing. See generally Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, as stated, there has been no hearing. The appellant's attorney was provided with a copy of the record on appeal in November 2012. All the evidence in this case has been thoroughly reviewed. Although the Board is obliged to provide sufficient reasons and bases to support a decision, there is no requirement or need for a detailed discussion of all the evidence submitted by the Veteran or on the Veteran's behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the entire record must be reviewed, but only such evidence as is relevant must be discussed). "There is a presumption that [VA] considered all of the evidence of record," and the mere failure to discuss a particular piece of evidence is insufficient to rebut that presumption. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Background Historically, a March 2008 rating decision confirmed and continued a 30 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201 (previously rated under Diagnostic Code 5202) for right shoulder degenerative joint disease (DJD), status post (SP) acromioplasty of the major extremity (which had been in effect since November 21, 1991). A January 2009 rating decision granted a 100 percent rating, effective September 15, 2008, the date of a total right shoulder arthroplasty, due to right glenohumeral joint arthritis. The 100 percent rating under Diagnostic Code 5051 was assigned for 13 months following the prosthetic right shoulder joint replacement and a schedular rating of 30 percent was assigned from November 1, 2009, under Diagnostic Code 5201. An August 2010 rating decision granted service connection for CAD; diabetic peripheral neuropathy of the left lower extremity; diabetic peripheral neuropathy of the right lower extremity, and each was assigned an initial 10 percent disability rating. A September 2010 rating decision granted a temporary total rating of 100 percent from March 30, 2010, based on surgical treatment necessitating convalescence (38 C.F.R. § 4.30), and a schedular rating of 30 percent was resumed effective May 1, 2011, under Diagnostic Code 5201. Also, that rating decision granted SMC based on HB criteria being met from March 30, 2010, to May 1, 2011. In June 2011 the Veteran forwarded an executed VA Form 21-526b, Veteran's Supplemental Claim, in which he requested "TEMP PARA 29/30 BENEFITS FOR SUGERY on right shoulder" and SMC "housebound benefits." A September 2011 rating decision denied entitlement to a temporary total rating and also denied SMC based on HB. That decision noted that his right shoulder disability might have increased in severity and, thus, a VA examination would be scheduled. The Veteran was provided a VA Disability Benefits Questionnaire (DBQ) examination on June 27, 2013. An August 2013 rating decision granted a 50 percent schedular rating for the service-connected right shoulder disability under Diagnostic Code 5200 based on unfavorable ankylosis from September 26, 2012. That 50 percent rating is the maximum schedular rating under Diagnostic Code 5200 and no higher schedular rating may be assigned unless under Diagnostic Code 5202 there is impairment of the humerus of the major extremity with nonunion (false flail joint) which warrants a 60 percent rating or loss of the humeral head (flail shoulder) which warrants an 80 percent rating; or under Diagnostic Code 5055 there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. In this regard, 38 C.F.R. § 4.71a, Diagnostic Code 5051 provides that when there has been a prosthetic replacement of the shoulder joint, of the major or minor extremity, a 100 percent rating is to be assigned for 1 year following implantation of the prosthesis. Thereafter, in assigning a rating for the major extremity, a 60 percent evaluation is assigned for chronic residuals consisting of severe, painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the rating is to be assigned by analogy to Diagnostic Codes 5200 and 5203, with a minimum rating of 30 percent. In turn, Diagnostic Code 5200 notes that the scapula and humerus move as one piece and that unfavorable ankylosis of the scapulohumeral articulation of the major extremity, with abduction limited to 25 degrees from the side warrants a 50 percent rating; when in intermediate ankylosis, between favorable an unfavorable; and when in a favorable position of ankylosis, in abduction to 60 degrees, being able to reach the mouth and head, a 30 percent rating is warranted. Under Diagnostic Code 5203 impairment of the clavicle or scapula of the major extremity, when there is dislocation or nonunion with loose movement a 20 percent rating is warranted. With nonunion without loose movement or with malunion a 10 percent rating is warranted. No rating higher than 20 percent is provided for under Diagnostic Code 5203. Thus, since Diagnostic Code 5051 mandates a minimum 30 percent rating, the analogous rating must be made under Diagnostic Code 5200. In this case, the 30 percent rating assigned by the September 2010 rating decision under Diagnostic Code 5201 encompassed limited motion of the major extremity to midway between the side and shoulder level, and the next higher rating of 40 percent would encompass limitation of motion to 25 degrees from the side. The plain language of 38 C.F.R. § 4.71a confirms that a Veteran is only entitled to a single disability rating under DC 5201 for each arm that suffers from limited motion of the shoulder joint. Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to "limitation of motion of" the arm. See 38 C.F.R. § 4.71a, DC 5201. The plain meaning of DC 5201, therefore, is that any "limitation of motion of" a single arm at the shoulder joint constitutes a single disability, regardless of the number of planes in which the arm's motion is limited. Yonek, 772 F.3d at 1359. Here, the evidence simply does not show that the Veteran was hospitalized for a period in excess of 21 days at a VA or VA approved facility for his right shoulder surgery. Accordingly, the provisions of 38 C.F.R. § 4.29 are not applicable. Extension of a temporary total rating based on convalescence following right shoulder surgery beyond May 1, 2011 Under 38 C.F.R. § 4.30, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to 38 C.F.R. § 3.105(e). Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section. Under 38 C.F.R. § 4.30(a) total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence (Effective as to outpatient surgery March 1, 1989.); (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989.); (3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10, 1976.) 38 C.F.R. § 4.30(a) further provides that a reduction in the total rating will not be subject to 38 C.F.R. § 3.105(e) of this chapter. The total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physical examination will be scheduled prior to the end of the total rating period. 38 C.F.R. § 4.30(b) provides that a total rating under this section will require full justification on the rating sheet and may be extended as follows: (1) Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a) (1), (2) or (3) of this section; (2) Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a) (2) or (3) of this section upon approval of the Veterans Service Center Manager. Analysis In this case following revision of a total right shoulder arthroplasty the Veteran was awarded a temporary total rating based on need for convalescence from March 30, 2010, until a schedular 50 percent rating assigned May 1, 2011. This is a period in excess of one year. Under 38 C.F.R. § 4.30(b)(2) the maximum length that a 100 percent convalescent rating may be assigned is limited to one year. This is the same length of time for which a 100 percent rating may be assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5051, i.e., a period of one year following prosthetic replacement of a shoulder. Nothing in the Schedule for Rating Disabilities allows for the assignment of both a 100 percent rating under Diagnostic Code 5051 and temporary total convalescent rating under 38 C.F.R. § 4.30 for the same length of time inasmuch as this would violate the prohibition against pyramiding, i.e., double compensation. Because the Veteran received a temporary total rating based on convalescence for at least one year, there is no provision for the award of an extension of his convalescent rating beyond May 1, 2011. Accordingly, an extension of a temporary total rating based on convalescence beyond May 1, 2011, is not warranted. Extension of SMC based on HB beyond May 1, 2011 38 U.S.C. § 1114(s) provides that SMC at the housebound rate is payable "[i]f the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of such veteran's service-connected disability or disabilities is permanently housebound." "[T]he requirement of 'permanently housebound' will be considered to have been met when the veteran is substantially confined to the veteran's house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran's lifetime." See also 38 C.F.R. § 3.350(i)(2). The percentage requirements under 38 U.S.C.A. § 1114(s)(1) and 1114(s)(2) are separate means of awarding SMC at the housebound rate. As to total disability ratings based on individual unemployability due to service-connected disabilities, 38 C.F.R. § 4.16(a) provides that: Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Special monthly compensation is payable at a specified rate if a veteran under 38 U.S.C.A. § 1114(s) when a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular 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). Additionally, a total disability rating based on individual unemployability (TDIU) may meet the criterion, but only if assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). While the separate disabilities rated as 60 percent disabling must involve separate and distinct anatomical segments or body systems, the fact that the total disability and the independent 60 percent disabilities result from a common etiological agent will not preclude entitlement. If the service-connected disability or disabilities for which SMC was awarded improve(s), such that SMC is no longer warranted, SMC will be discontinued. See VAOPGCPREC 21-94 (Dec. 13, 1994) (holding that the statutory provisions authorizing payment at the SMC(l) rate for aid and attendance do not require that the need be permanent as a predicate to such an award, and that, to the extent that 38 C.F.R. § 3.352 suggests that the need be permanent, the title is inconsistent with the governing statutes). With regard to the permanently housebound requirement on a facts found basis, this is met where a veteran is substantially confined as a direct result of a service-connected disability to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinic areas, and it is reasonably certain that the disability or disabilities and resulting confinement will continue throughout his or her lifetime. Id. Analysis In this case, the Veteran was awarded SMC based on HB for the duration of the assignment of a temporary total rating based on convalescence. The award of the convalescent rating met the requirement for a 100 percent rating, and the Veteran's remaining service-connected disabilities, i.e., other than the service-connected right shoulder disorder, combined to more than 60 percent. However, with the termination of the convalescent rating as of May 1, 2011, he no longer met the criteria of having a 100 percent rating as required for meeting the schedular requirements for SMC based on HB. In this regard, the Board is aware that the September 2010 (as did the September 2011 rating decision) rating code sheet stated that SMC under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) were met because the service-connected right shoulder disorder was "a single disability upon which a total individual employability rating is based." However, from reading the narrative portion of the September 2010 rating decision it is clear that that the award of SMC based on HB was premised not upon the award of a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a) but upon the grant of a temporary total rating based on need for convalescence under 38 C.F.R. § 4.30. Accordingly, the Veteran did not met the schedular requirements for SMC based on HB beyond May 1, 2011 inasmuch as even after the September 2011 and August 2013 rating decisions the Veteran was not in receipt of a single disability rated 100 percent or a single disability which was the basis for a total disability rating based on individual unemployability due to service-connected disabilities. However, there remains for consideration whether the Veteran was entitlement to SMC based on HB on a factual basis, irrespective of whether he met the schedular criteria for SMC based on HB. In this regard, in Howell v. Nicholson, 19 Vet. App. 535, 539-40 (2006) (precedential decision) it was stated that SMC at the housebound rate "will be paid to a veteran who, 'by reason of such veteran's service-connected disability or disabilities, is permanently housebound.' 38 U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2). The term 'permanently housebound' is further defined as being 'substantially confined to such veteran's house ... or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout the veteran's lifetime.' Id. The term 'substantially confined' is not defined by statute or regulation." Because the meaning of the term 'substantially confined' is ambiguous and there is no regulatory interpretation, the Court defined "substantially confined" to mean that leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that a veteran is not substantially confined for purposes of SMC-HB benefits. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). A February 2008 decision of an SSA Administrative Law Judge held that the Veteran had been disabled since August 2003 for the purpose of receipt of SSA disability benefits. On examination for Housebound Status or Permanent Need for Aid and Attendance in June 2011 it was reported that the Veteran had had an infected right total arthroplasty. He was on a diabetic diet. He was not confined to a bed. He was not legally blind and could feed himself. He was not able to prepare his own meals and needed assistance in bathing and tending to other hygiene needs. He required medication management but did not need nursing home care. He could handle his own financial affairs. It was reported that he had no use of his right arm, which limited his self-care. He seldom left his own home. He could only walk for less than one block. On VA examination of the Veteran's shoulders in July 2013 it was noted that the Veteran had had shoulder rotator cuff repairs of each shoulder in 1985. He had had further right shoulder surgery in 1989 and 1990, and later had a shoulder replacement. Following difficulties with that shoulder replacement he had a second replacement in 2010, following which he developed an infection and has 13 more procedures for drainage. He was unable to lift anything with his right arm without having pain. He complained of daily right shoulder aching which was 8 to 9 on a scale of 10. He had sharp left shoulder pain at night which was 8 on a scale of 10 for short durations and associated with movement. On physical examination his right shoulder was ankylosed but he had motion in the left shoulder, with flexion and abduction both to 170 degrees. He had painful and limited motion of the left shoulder, weakened left shoulder, and a deformity of the right shoulder. On VA diabetic neuropathy examination it was noted that the Veteran's diabetes had been difficult to control prior to the development of neuropathy in 2008. He complained of a sensation of pins and needles in his feet. Nerve conduction studies had indicated neuropathy. He had mild pain and numbness as well as mild paresthesias or dyesthesias in each lower extremity. Strength was normal at 5/5 and reflexes were normal at 2+ throughout the lower extremities. Sensation, position, cold, and vibration were intact to touch throughout the lower extremities. There was no muscle atrophy or trophic changes. It was opined that his diabetic peripheral neuropathy did not impact his ability to work. On VA gastrointestinal examination it was reported that an endoscopic examination in 2007 had revealed a gastric ulcer with reflux esophagitis, and that the condition had improved with treatment. He did not have anemia, weight loss, vomiting, hematemesis or melena. On VA esophageal examination it was reported that the Veteran had been diagnosed with gastroesophageal reflux disease (GERD). He did not eat spicy food and occasionally had dysphagia, heartburn, and regurgitation as well as sleep disturbance. He did not have anemia, weight loss, vomiting, hematemesis or melena. It was opined that his esophageal condition did not impact his ability to work. On VA cardiovascular examination it was reported that the Veteran had had the onset of chest pain, off and on, in 2000. He had been hospitalized in 2001 and again in 2003 for cardiac catheterization, with one stent placed during each hospitalization. He had not had by-pass surgery or pacemaker placement. He continued to complain of chest pain which occasionally required his taking Nitroglycerin. He had not had a myocardial infarction. He did not have congestive heart failure (CHF). His blood pressure was 153/80. His June 2013 interview-based METs test was between 3 and 5, indicating and consistent with activities such as light yard work, e.g., weeding; mowing lawn (with a power mower); and brisk walking (at 4 mile per hour). This METs level was due solely to his heart condition. It was opined that his heart condition did not impact his ability to work. On examination for hypertension it was noted that he took medication without any side-effects, and he denied headaches and dizziness. He did not have a history of diastolic blood pressure of predominantly 100 or more. His current blood pressure readings were: 145/82, 154/81, and 153/80. He had no other pertinent physical findings, complications, conditions, signs or symptoms. His hypertension did not impact his ability to work. On VA examination of the Veteran's feet it was reported that he had been diagnosed as having hammertoes. He had developed bunions of both feet and had had surgery in 1985 for hammertoes of the 4th and 5th toes, bilaterally. On physical examination he had hammertoe of the 4th toe of each foot. He did not now have and had never had hallux valgus. He did not have hallux rigidus or pes cavus. He did not have bilateral weak feet. His postoperative scars were not painful or unstable. He constantly used a cane as an ambulatory aid. It was opined that his condition of the feet did not impact his ability to work. On VA examination for diabetes it was reported that the Veteran took one or more injections of insulin daily. Regulation of activities was not a part of medical management of diabetes mellitus. He visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than 2 times per month. He had not had any episodes of ketoacidosis requiring hospitalization over the past 12 months. He had had 2 episodes of hypoglycemia requiring hospitalization over the past 12 months. He had not had any progressive unintentional weight loss attributable to diabetes. His diabetes and its complications did not impact his ability to work. Also, on VA examination in June 2013 the Veteran's medical history was reviewed and he was given a general medical examination. With respect to his claim for a total disability rating based on individual unemployability due to service-connected disabilities the examiner opined that due to functional limitations due to service-connected cardiac and bilateral shoulder conditions, the Veteran was limited to sedentary to light duty type activities. Of record are assessments in October 2013 by a private physician, Dr. D. S., reflecting that for the past 7 years the Veteran had had mild restrictions as to being exposed to marked changes in temperature and humidity, driving automotive equipment, and exposure to dust, fumes, and gases but no restrictions as to unprotected heights or being around moving machinery. The underlying cause of this was his shoulders and legs. His pain was intractable and virtually incapacitating. Physical activity, e.g., walking, standing, bending, stooping, and moving his extremities increased pain to the extent that bed rest was necessary. He was totally restricted and unable to function at a productive work level. For the last 10 years he had been restricted as to daily activities with respect to walking, standing, and driving. His heart condition caused shortness of breath. He had slight limitation as to his ability to perform work activity. It was felt that he could not maintain an 8 hour work day. Fatigue was present to such an extent as to be distracting to adequate performance of daily activities or work. In weighing the evidence the Board observes that the evidentiary information provided in October 2013 by Dr. D. S. as well as by the VA examinations addressed primarily the impact of the Veteran's service-connected disabilities with respect to the Veteran's ability to work. However, in the context of entitlement to SMC based on HB the essential matter is not the impact on the Veteran' ability to work but whether the Veteran is substantially confined to his premises. As to this, the Board observes that the June 2011 VA examination noted that the Veteran was not able to prepare his own meals and needed assistance in bathing and tending to other hygiene needs. Crucially, it was reported that he seldom left his own home and could only walk for less than one block. Dr. D.S. also maintained that the Veteran experienced pain that was intractable and virtually incapacitating. Physical activity, e.g., walking, standing, bending, stooping, and moving his extremities increased his pain to the extent that bed rest was necessary. From the foregoing, and after giving due consideration to the favorable resolution of doubt under 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, the Board concludes that after May 1, 2011, the Veteran was so functionally impaired as to be substantially confined to his immediate premises due to his service-connected disabilities which remained throughout the Veteran's lifetime. ORDER Extension of a temporary total rating based on convalescence following right shoulder surgery beyond May 1, 2011, is denied. Extension of SMC based on HB beyond May 1, 2011, is granted. REMAND In an August 2014 NOD disagreement was expressed with the RO's August 2013 denial of a TDIU rating. By filing an NOD, appellate review of this issue has been initiated. The next step in the appellate process is for the RO to issue to the appellant, who has been substituted for the Veteran, and her attorney an SOC. See 38 C.F.R. § 19.29 (2015); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, this matter must be remanded to the RO for the issuance of a SOC. The Board emphasizes, however, that to obtain appellate review of an issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2015). Accordingly, the case is REMANDED for the following action: 1. The RO must issue to the Appellant and her attorney an SOC addressing the claim for a TDIU rating. Along with the SOC, the RO must furnish to the Appellant and her attorney a VA Form 9 (Appeal to Board of Veterans' Appeals), and afford them the applicable time period for perfecting an appeal as to this issue. The Appellant and her attorney are hereby reminded that appellate consideration of the matter identified above, i.e., a TDIU rating may be obtained only if a timely appeal is perfected. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs