Citation Nr: 18152827 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 05-41 122 DATE: November 27, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran’s service-connected cervical spine disability prior to January 31, 2007, and from May 1, 2007 to September 18, 2008, is granted. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) prior to January 31, 2007, and from May 1, 2007 to September 18, 2008, is granted. Entitlement to an increased rating for cervical spine disability on an extraschedular basis is dismissed as moot. FINDINGS OF FACT 1. The Veteran met the schedular criteria for a TDIU on March 18, 2004, the date she submitted the claim on appeal; from that date forward, her cervical spine disability has rendered her unable to secure or follow a substantially gainful occupation. 2. Prior to January 31, 2007, and from May 1, 2007 to September 18, 2008, the Veteran was in receipt of a single service-connected disability rated as total with additional service-connected disabilities of common etiology independently ratable as 60 percent or more. 3. The Veteran is in receipt of the maximum allowable benefit for her service-connected cervical spine disability. CONCLUSIONS OF LAW 1. From March 18, 2004, the criteria for a TDIU based on the Veteran’s cervical spine symptoms have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16(a) (2017). 2. Prior to January 31, 2007, and from May 1, 2007 to September 18, 2008, the criteria for SMC pursuant to 38 U.S.C. § 1114(s) have been met. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350 (2017). 3. The claim of entitlement to an increased rating for cervical spine disability on an extraschedular basis is dismissed as moot. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1995 to December 1999. Procedural History This appeal originates from an informal claim for increased disability compensation filed by the Veteran in March 2004. In a June 2004 rating decision, the Regional Office (RO) denied entitlement to a schedular rating in excess of 20 percent for her cervical spine disability, and the Veteran filed a notice of disagreement in August 2004. In November 2009, the Board issued a decision denying entitlement to increased schedular ratings and referring the matter of entitlement to an increased rating on an extraschedular basis to the Director of Compensation Service (Director). In August 2015, the Director issued an administrative decision denying entitlement to an increased rating on an extraschedular basis, and the matter was returned to the Board. In February 2016, the Board remanded the claim for additional development. However, because the Board is granting the maximum available benefit for her cervical spine symptoms in the form of a TDIU (discussed in greater detail below) and additional SMC, the extraschedular issue is now moot. TDIU and SMC The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Relevant to this appeal, a claim for increased disability compensation may include the inferred issue of entitlement to a TDIU when the record indicates that the veteran is unable to work due to service-connected disability or disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased rating claims may also include claims for additional compensation in the form of SMC, even where the veteran has not expressly placed entitlement to SMC at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). TDIU will be awarded when a Veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a). To qualify for a TDIU on a schedular basis, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. Id. Here, the Veteran’s service-connected disabilities met the schedular criteria for a TDIU on March 18, 2004, the date her appeal was initiated. On that date, service connection was in effect for, in pertinent part, radiculopathy of the right and left upper extremities (rated as 50 percent and 40 percent disabling, respectively), cervical spine disability (20 percent disabling), and endometriosis (10 percent disabling); the combined rating of these disabilities was 80 percent. The crucial question, therefore, for TDIU purposes, is whether the Veteran was unable to secure or follow a substantially gainful occupation due to any one of these disabilities or as a result of their collective impact. The Board notes that, although a TDIU has not previously been granted (nor indeed even considered) in this matter, the Veteran has already been awarded SMC pursuant to 38 U.S.C. § 1114(s) for the period from January 31, 2007 to May 1, 2007, and from September 18, 2008 to the present. 38 U.S.C. § 1114(s) (entitlement to this benefit requires, in pertinent part, that a Veteran has a service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more). As SMC at the (s) level constitutes the maximum available benefit under the circumstances of this case, the issue of entitlement to a TDIU during those periods is moot. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that VA’s duty to maximize a claimant’s benefits includes consideration of whether his or her disabilities establish entitlement to SMC under 38 U.S.C. § 1114). For the remainder of the appeal period—i.e., from the date of the Veteran’s claim (March 18, 2004) to January 31, 2007, and from May 1, 2007 to September 18, 2008—the Board finds, for the following reasons, that entitlement to a TDIU based solely on the functional impact caused by the Veteran’s cervical spine disability is warranted. As a result of this determination, an award of SMC pursuant to 38 U.S.C. § 1114(s) during these periods will also be granted. With respect to TDIU, the evidence of record demonstrates that the Veteran’s cervical spine disability, considered independently of her other service-connected disabilities, can fairly be said to have rendered her unable to secure or follow a substantially gainful occupation for the entire appeal period. A May 2004 VA examination report showed that the Veteran was experiencing almost constant pain in her neck, and that as a result she had been on state disability since December 2003. In a March 2004 letter, the Veteran’s physician stated that the Veteran’s cervical spine disability caused not only pain and reduced range of motion but also severe sleep disturbance and decreases in energy level, physical activity, concentration, and appetite. In a March 2007 statement, a friend of the Veteran’s reported that the Veteran was bedridden 85 to 90 percent of the time; that her range of motion was so limited that she could not turn her neck to speak while lying down; that she could not perform simple tasks on her own and was in need of constant assistance; and that she suffered from episodes of complete incapacitating pain and muscle spasms that lasted up to several hours. Pertinent VA examination reports from March and November of 2007 further demonstrated that the Veteran was essentially unemployable due to her cervical spine disability. In addition, the Veteran has submitted numerous lay statements describing symptoms such as the inability to perform overhead work, inability to use her right arm, excessive fatigue, inability to concentrate, weight loss, and severe incapacitating episodes lasting for weeks at a time. In sum, the Board finds that the evidence discussed above clearly shows that the Veteran’s cervical spine disability, standing alone, rendered her unemployable from the date she filed her claim for increased compensation, in March 2004. The requirements of a TDIU have therefore been met from that date. See 38 C.F.R. § 4.16(a). As a result of this finding with respect to TDIU, an award of SMC pursuant to 38 U.S.C. § 1114(s) is also warranted for the remainder of the appeal period. The Board reiterates that, to establish entitlement to SMC under 38 U.S.C. § 1114(s), the evidence must show, in pertinent part, that a Veteran has a service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more. See also 38 C.F.R. § 3.350(i). In this case, the Veteran has a single service-connected disability rated as total (i.e., cervical spine disability, to include an award of TDIU) with additional service-connected disability independently rated at 60 percent or more (i.e., bilateral cervical radiculopathy stemming from a common etiology). Thus, the criteria for SMC pursuant to 38 U.S.C. § 1114(s) have been met for the periods under consideration. (Continued on the next page)   Extraschedular Rating With respect to the Veteran’s appeal regarding her claim for an extraschedular rating for her cervical spine disability, the Board acknowledges that in exceptional cases VA may assign an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. However, 38 C.F.R. § 3.321(b)(1) is designed to perform a gap-filling function; “it accounts for situations in which a veteran’s overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran’s disabilities are nonetheless inadequately represented.” Johnson v. McDonald, 762 F.3d 1362, 1366 (Fed. Cir. 2014). Although the record shows that the Veteran’s cervical spine disability has been productive of severe and debilitating symptoms above and beyond those which are contemplated in the rating schedule, in light of the awards of TDIU and SMC discussed above, covering the entire period on appeal, the Veteran has been assigned a total schedular rating for her cervical spine symptoms. Under these circumstances, consideration of an extraschedular rating is moot, and the claim must therefore be dismissed. Id.; see also Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Minot, Associate Counsel