Citation Nr: 21064697
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 17-43 277
DATE: October 21, 2021

REMANDED

Entitlement to an increased rating for post-traumatic stress disorder (PTSD), rated as 30 percent disabling prior February 1, 2016 and 70 percent disabling thereafter, is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 1, 2016 is remanded.

Entitlement to special monthly compensation under 38 U.S.C. § 1114(s) is remanded.

REASONS FOR REMAND

These matters were most recently before the Board of Veterans' Appeals (Board) in March 2021, when they were remanded for further development.  At that time, the Board, in pertinent part, directed the Agency of Original Jurisdiction (AOJ) to develop and adjudicate, in the first instance, the issue of entitlement to special monthly compensation under 38 U.S.C. § 1114(s) (housebound rate on statutory basis), as an element of the Veteran's increased rating claim in accordance with Buie v. Shinseki, 24 Vet. App. 242 (2011) and Bradley v. Peake, 22 Vet. App. 280 (2008).  See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991).  There is no indication from the record the AOJ considered the issue of entitlement to special monthly compensation under 38 U.S.C. § 1114(s) as required by the Board's March 2021 remand directives, necessitating a remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Additionally, the AOJ denied entitlement to TDIU prior to February 1, 2016 based, in part, on a finding that the Veteran does not meet the schedular percentage requirements for TDIU prior to that date; however, as noted by the Veteran's representative in an October 2021 informal hearing presentation, the Veteran does meet the schedular percentage requirements for TDIU prior to February 1, 2016 because his service-connected diabetes mellitus, type II, and associated complications are considered one disability for the purposes of qualifying for TDIU because these disabilities result from a common etiology.  See 38 C.F.R. § 4.16(a).  Thus, the Board finds it necessary for the AOJ to readjudicate this issue based on the correct factual predicate, as well as the rating assigned for PTSD, given the potential relevance of any new evidence that may be developed in the context of the issue of entitlement to special monthly compensation under 38 U.S.C. § 1114(s), to ensure the Veteran is afforded due process. 

The matters are REMANDED for the following action:

1. Develop and adjudicate the issue of entitlement to special monthly compensation under 38 U.S.C. § 1114(s) (housebound rate on a statutory basis), as an element of the Veteran's September 2013 increased rating claim for PTSD in accordance with Buie v. Shinseki, 24 Vet. App. 242 (2011) and Bradley v. Peake, 22 Vet. App. 280 (2008) as required by the Board's March 2021 remand directives, i.e., determine if one of the Veteran's service-connected disabilities standing alone warrants TDIU with other service-connected disabilities resulting in a combined 60 percent rating at any point in the appeal period.

2. Based on any new evidence that may be developed in the context of the issue above, readjudicate both the rating assigned for PTSD and the issue of entitlement to TDIU prior to February 1, 2016, recognizing the provisions of 38 C.F.R. § 4.16(a) that indicate disabilities resulting from common etiology, such as the Veteran's service-connected diabetes mellitus, type II, and associated complications, are considered one disability for the purposes of the schedular percentage requirements for TDIU.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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.