Citation Nr: 21003026 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-26 276 DATE: January 19, 2021 REMANDED Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) benefits based on the need for aid and assistance or at the homebound level is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1980 to May 1984. This matter comes to the Board of Veterans' Appeals (Board) from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. These issues were previously before the Board in September 2017, May 2018, and May 2019, when, among other actions, they were remanded for further evidentiary and procedural development. The Board’s prior remand directives and the subsequent actions of the AOJ will be further discussed below. These issues have been returned to the Board for further appellate consideration. Preliminary note In September 2018, while the Veteran’s appealed issues to establish service connection and a TDIU were under the jurisdiction of the AOJ, the Veteran submitted a statement regarding his wishes to file a claim to establish eligibility to SMC based on the need of aid and attendance or at the homebound level. On October 5, 2018, the AOJ sent the Veteran a letter notifying him that this claim was accepted and would be developed; however, a later letter from the AOJ informed the Veteran that his September 2018 claim could not be accepted because the proper VA form had not been submitted with his informal claim. With the above in mind, the Board notes that the United States Court of Appeal for Veteran’s claims (the Court) has held that a claim for a TDIU is considered a claim for an increased evaluation, and that a claim for SMC based on the need of aid and attendance or at the homebound level is part and parcel of any pending claim seeking an increased evaluation. Hurd v. West, 13 Vet. App. 449 (2000); Akles v. Derwinski, 1 Vet. App. 118 (1991). More recently and pointedly, the Court has held in a precedential decision that the filing of a formal claim for SMC is not necessary if such is being sought as part and parcel of a pending claim for an increased evaluation, as the former is an ancillary benefit of the latter. See Payne v. Wilkie, 31 Vet. App. 373, 385-91 (2019). As such, the Veteran’s appeal seeking SMC is properly before the Board and has been added to the title page. 1. Entitlement to a TDIU is remanded. 2. Entitlement to SMC benefits based on the need for aid and assistance or at the homebound level is remanded. While the Board sincerely regrets additional delay regarding readjudication of the Veteran’s appeal, for the reasons expressed below, a remand is necessary in order to obtain outstanding evidence that is pertinent to both issues on appeal. In response to the Board’s November 2019 remand directives, the Veteran was provided several VA examinations to determine whether the symptoms and functional impairment stemming from his service-connected peripheral vestibular disability, tinnitus, and acquired psychiatric disability, resulted in an inability to maintain a substantially gainful occupation or impairment meeting the criteria for SMC based on the need for aid and assistance or at the homebound level. In furtherance of these efforts, the Veteran reported to a March 2020 VA examiner that he began receiving disability retirement in 2005. It is unclear why this information was not shared with VA prior to this point, as the records regarding such a disability retirement, although pre-dating the current appeal period by several years, undoubtedly impact the questions forming the crux of the Veteran’s appeal. Moreover, to the extent that the Veteran’s disability benefits may stem from the Social Security Administration (SSA) or another Federal program, VA has a duty to seek and obtain the records associated with the award, if extant. Further, as noted by the Board in November 2019, there is substantial evidence that the Veteran’s service-connected peripheral vestibular disability, tinnitus, and acquired psychiatric disability, negatively impacted his employability throughout the entirety of the appeal period (since February 19, 2013); however, the Veteran’s combined evaluation does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) during this entire period. That is, the Veteran meets the schedular threshold under these provisions on and after October 25, 2017, but prior to that date he does not. From October 25, 2017, he has one service-connected disability rated as 50 percent disabling with additional service-connected disability that combines to 70 percent. Prior to that date, he also has a single disability rated as 50 percent, but his combined rating is only 60 percent. Under these circumstances and due to the inter-related nature of the Veteran’s disabilities, the Board concludes that the duty to refer the matter of entitlement to a TDIU on an extraschedular basis prior to October 25, 2017, to the VA Undersecretary for Benefits or the AOJ’s Director of Compensation Service has been triggered, as the Board may not address such a matter in the first instance. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the claims file any decision concerning disability benefits from the Social Security Administration (SSA), to include the medical records on which that decision was based. If the search for such records has negative results, the Veteran’s VA file must be properly documented as to the unavailability of these records. 2. If the above directive is unfruitful, the AOJ must contact the Veteran and request that he provide name of the entity from which he received “disability retirement” benefits starting in 2005. Based on his reply and assistance, if necessary, any identified records should be obtained from the appropriate entity and associated with the Veteran’s VA file. 3. Thereafter, the AOJ must refer to the Undersecretary for Benefits or the Director of Compensation Service the issue of entitlement to TDIU for extraschedular consideration under 38 C.F.R. § 4.16(b) for the period prior to October 25, 2017. 4. Thereafter, the AOJ must readjudicate the issues on appeal. If any benefit sought is not granted in full, the AOJ provide the Veteran with a copy of the readjudication and afford him an appropriate time to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.