Citation Nr: 21067477 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 13-25 732 DATE: November 4, 2021 REMANDED Entitlement to special monthly compensation (SMC) based upon the need for aid and attendance is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 22, 2019, to include on an extraschedular basis prior to June 14, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to April 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2012 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2016 Board video conference hearing. A transcript of that hearing has been associated with the claims file. On July 22, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Partial Remand (JMPR) that remanded the issue of a lumbar back service connection claim back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated July 29, 2021 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative submitted no new evidence, and thus the Board will proceed to consider the JMPR in this case. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMPR will be discussed further below. In July 2016 and June 2018, the Board remanded the above issues. Based on the Court's JMPR, the issues must again be remanded. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). As noted above, the Court vacated and remanded the Board's June 2020 decision. The Court, in its Joint Motion for Partial Remand (JMPR), called attention to the SMC denial and three concerns regarding the possibility of an earlier TDIU than the Board awarded in its June 2020 decision. No. 20-7248, 2021 U.S. App. Vet. Claims (July 22, 2021) (unpublished). 1. Entitlement to special monthly compensation (SMC) based upon the need for aid and attendance is remanded. Special monthly compensation (SMC) is a monetary benefit that is paid for service-connected disabilities which result in impairment of the senses, loss or loss of use (of the extremities, creative organ, breast, or buttocks), or which render the Veteran housebound or in need of the regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the "k" and "r" rates are paid in addition to any other SMC rates, with certain monetary limits. Id. The rate of SMC "varies according to the nature of the veteran's service-connected disabilities." Moreira v. Principi, 3 Vet. App. 522, 524 (1992). While schedular rates of compensation are predicated on the average reduction in earning capacity, special monthly compensation benefits are meant to provide additional compensation based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability. VAOPGPREC 5-89 (Mar. 23, 1989). The Veteran is seeking special monthly compensation (SMC) under 38 U.S.C. § 1114, subsection (l) and 38 C.F.R. § 3.350(b) on account of being so helpless as to be in need of regular aid and attendance while not hospitalized at U.S. government expense. The Veteran stated in an accompanying statement in October 2017 that he seeks the SMC aid and attendance because his bilateral knee disabilities are severe enough that he requires the assistance of someone else to care for him. He also has received SMC under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i), commonly referred to as SMC housebound, for two different periods relating to two different total knee replacements for defined periods of time, from October 2017 to November 2018, and for a second period from March 2019 to June 2020 for the other knee. Those two periods of SMC housebound are not on appeal in this decision. A Veteran considered in need of regular aid and attendance if he/she is: blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; a patient in a nursing home because of mental or physical incapacity; and/or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). These criteria include: inability to dress or undress, or to keep ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without such aid; inability to feed oneself through the loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or, incapacity (physical or mental) which requires care or assistance on a regular basis for protection from the hazards or dangers incident to daily environment. Id. The Veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance; the United States Court of Appeals for Veterans Claims (Court) has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." Turco v. Brown, 9 Vet. App. 222, 224 (1996). Here, VA obtained a March 2017 medical opinion regarding the Veteran's claim for SMC aid and attendance. The examiner's formal opinion was that it was less likely than not, less than 50 percent probability, that the Veteran's service-connected disabilities render him so helpless as to require regular aid and attendance of another person, or results in physical or mental impairment that leaves him substantially confined to his dwelling and immediate premises, with reasonable certainty that such disabilities and resultant confinement will continue throughout his lifetime. This examiner noted the Veteran was not permanently bedridden, currently hospitalized at the time of the opinion, that he is capable of traveling outside his current domicile, and that he does not require any orthopedic or prosthetic appliance. The examiner noted the Veteran had no reports of dizziness, memory loss, or problems with imbalance such that he has limitations of ambulation. The examiner considered the Veteran had no other body parts or impairments that would affect the ability of the Veteran to protect himself from his daily environment. The examiner did note the Veteran reported he had difficulty dressing and undressing himself, and his spouse had previously provided a statement where she would assist the Veteran in putting on his socks and shoes. The examiner noted the Veteran's limited range of motion for his lumbar spine and that his knees had each required total replacement. The Veteran used a cane for ambulation and could walk at least a half mile but not more than one full mile, per the examiner. The examiner considered the function of both upper extremities and both lower extremities to be normal. The CAVC took issue with that March 2017 VA opinion and a subsequent January 2019 VA opinion originally for the purpose a TDIU claim. The March 2017 VA opinion went against an award of SMC aid and attendance, but the CAVC pointed out that the subsequent January 2019 VA opinion, provided to assess a possible TDIU, also mentioned the Veteran had problems walking, standing, bending, putting socks, and shoes, and that the Veteran has problems in some activities of daily living. The Board thus finds that another VA addendum opinion is required to assess the whole of the pertinent evidence regarding the Veteran's claim for SMC aid and attendance. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 22, 2019, to include on an extraschedular basis prior to June 14, 2012, is remanded. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The Veteran has asserted that his service-connected back and knee disabilities has caused him to be unable to work, and he filed a claim for an increased rating for his back and knee disabilities originally on June 1, 2006. The Veteran's TDIU claim was initially denied in January 2007 and October 2008 rating decisions. A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran is currently service-connected for his lumbar spine disability with a 40 percent rating from June 14, 2012, total right knee arthroplasty with a 30 percent rating from December 1, 2018, total left knee arthroplasty with a 30 percent arthroplasty from June 1, 2020, left and right lower extremity radiculopathy, each at 10 percent from July 21, 2015, and a noncompensable rating for right knee surgical scar. As the Veteran had at least a minimum total 70 percent combined rating with a single disability at 40 percent or greater, here the lumbar back disability, since June 14, 2012, he met the threshold percentage requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a), effective from June 14, 2012. As noted above, the CAVC noted in its July 2021 opinion that because the Veteran claimed a TDIU from June 2006, before he had schedular eligibility pursuant to 38 C.F.R. § 4.16(a), that he should have been evaluated under extraschedular criteria pursuant to 38 C.F.R. § 4.16(b) prior to June 14, 2012. The Board cannot award TDIU under § 4.16(b) in the first instance, but must submit the matter to the Director of the Compensation Service. See Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009); Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board cannot award TDIU under § 4.16(b) in the first instance because it has no power to do so). The CAVC also noted in Ray v. Wilkie, 31 Vet. App. 58 (2019), that it directed the Board in that case to consider the following factors in the adjudication of any TDIU claim: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. at 73. The Board also notes that for a portion of the period on appeal for the TDIU, that the Veteran was incarcerated in federal prison after conviction of a felony. The claims file indicates he was released in March 2017. Under 38 C.F.R. § 3.341(b), a total rating for compensation purposes based on individual unemployability (TDIU) which would first become effective while a Veteran is incarcerated in a Federal, State or local penal institution for conviction of a felony, shall not be assigned during such period of incarceration. See 38 U.S.C. § 5313(c). This phrase has been interpreted to prohibit adjudication of TDIU if that TDIU rating would begin during a period in which a Veteran is incarcerated for conviction of a felony. See VAOPGCPREC 13-97 (Apr. 7, 1997). Accordingly, entitlement to TDIU may be denied as a matter of law if the TDIU rating would commence during such a period of incarceration. As such, the Board finds that remand is necessary for an opinion from the Director, Compensation Service, regarding the possibility of an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) prior to June 14, 2012. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with claims file. Contact the Veteran and request he submit or authorize for release any further private treatment records relevant to his SMC and TDIU claims. The RO is also requested to clarify the exact dates of the Veteran's incarceration in federal prison after his felony conviction, given that such incarceration could affect a TDIU award or its effective date. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. 2. Obtain an addendum opinion from an appropriate VA physician with expertise in orthopedics for the Veteran's claim for SMC and for an earlier TDIU prior to January 22, 2019, to specifically address the Veteran's service-connected disabilities that related to potential SMC for aid and attendance, and a TDIU. The Veteran need not be examined in person unless the VA examiner deems it necessary to meet the requirements of this remand. In providing the requested opinion for SMC, the examiner is to consider all of the medical and other evidence on file, to include the January 2019 VA examiner who noted the Veteran had problems walking, standing, bending, etc., and had problems with the activities of daily living. After the above is complete, the RO is to refer the issue of entitlement to a TDIU to the Director, Compensation Service, for adjudication in accordance with 38 C.F.R. § 4.16(b). 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.