Citation Nr: 21072117 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 10-41 602 DATE: December 2, 2021 ORDER Entitlement to service connection for a disability manifested by a fear of heights is denied. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to October 4, 2016, has been rendered moot and is dismissed. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran's reported symptoms do not meet the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria for a diagnosis of acrophobia or any other disability manifested be a fear of heights. 2. There is no basis to award special monthly compensation for the period prior to October 4, 2016. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a disability manifested by a fear of heights are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. There is no basis to assign special monthly compensation for the period prior to October 4, 2016, and the claim for TDIU is therefore moot for this period. 38 U.S.C. § 1114(s); 38 C.F.R. § 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1968 to January 1971, to include in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) from a November 2011 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). This rating decision subsumed an April 2010 rating decision which denied the same benefits. 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing conducted at the RO. A transcript of this hearing is of record. These appealed issues, among others, were previously before the Board in October 2019, when, among other actions, it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appealed issues. The Board's October 2019 remand also included appealed issues to establish service connection for bladder cancer and a disability manifested by "equilibrium problems;" however, in a July 2021 Decision Review Officer (DRO) decision and a September 2021 rating decision, the AOJ, among other actions, established service connection for vertigo and bladder cancer, respectively. While the appeal period of these decisions remains pending, the AOJ's allowances have abrogated those appealed issues, and thus, they are no longer in appellate jurisdiction. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board's prior remand directives and the subsequent actions of the AOJ regarding the issues remaining on appeal will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for a disability manifested by a fear of heights Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Analysis The Veteran's appealed issue stems from a July 2009 statement in which he describes experiencing "height fright" during and since service. In several subsequent statements and in testimony at the April 2019 Board hearing, the Veteran clarified that his inner ear symptomatology, later diagnosed as vertigo with hearing loss and tinnitus, often resulted in balance impairment, and these symptoms are exasperated when the Veteran was at an elevated location, as a fall from a high location would result in increased injury. In sum, there is substantial interplay between the Veteran's service-connected vertigo and his reported fear of heights, and the Veteran's claim has been considered under the theories of direct and secondary service connection; however, while the Board does not disbelieve that the Veteran experiences a fear of being in high places, the most probative evidence reflects that his symptoms do not meet the criteria for a diagnosis of acrophobia or any other disability manifested be a fear of heights. The Veteran's copious VA treatment records and the reports of VA psychiatric examinations conducted in February 2010, August 2011, October 2016, and January 2021 are devoid of a diagnosis of acrophobia or any other disability manifested be a fear of heights. More specifically, the January 2021 VA examiner noted the Veteran's reported symptoms and opined that such did not meet the criteria of any psychiatric disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Again, the Board acknowledges the Veteran's competent and credible reports of being afraid of high places; however, the Court has held that receipt of VA compensation for a psychiatric disability must be based on a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). As the record reflects that the Veteran's reported symptoms do not meet the criteria of a DSM-5 diagnosis, service connection for a disability manifested by a fear of heights must be denied. 2. Entitlement to a TDIU prior to October 4, 2016 As outlined in the Board's October 2019 decision and remand portions, the appeal period for consideration regarding the Veteran's issue seeking a TDIU is from May 28, 2009, (the date that the Veteran filed his claim to establish service connection for posttraumatic stress disorder (PTSD) to October 3, 2016, (the day prior to the effective date of the Board's award of a TDIU in the October 2019 decision). Pertinently, as alluded to in the Introduction, the AOJ established service connection for bladder cancer in a September 2021 rating decision; a 100 percent initial evaluation was assigned from April 7, 2008, to May 31, 2020, after which time the evaluation was decreased to 10 percent. In sum, the AOJ's actions resulted in the Veteran's receipt of a 100 percent schedular evaluation for this service-connected disability throughout the entirety of the appeal period for consideration regarding the Veteran's TDIU appeal. On June 7, 1999, VA's General Counsel issued VAOGCPREC 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114 (s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). In light of the holding in Bradley, which takes a position contrary to the one reached in the precedent opinion, the General Counsel withdrew the June 1999 precedent opinion in November 2009. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VAOGCPREC 6-99. Moreover, once a claim for SMC is recognized as an included claim within the claim for TDIU, VA must otherwise consider the Veteran's entitlement to this benefit. In this case, for the period on appeal, the Veteran's next highest rating is 30 percent for his service-connected PTSD, and he has one additional disability that is compensably rated at 10 percent. Thus, the Veteran does not have a single disability that would support TDIU for this period outside of his bladder cancer. The Board further notes that such additional disability does not amount to 60 percent or more to otherwise entitle the Veteran to SMC for this period based on the Veteran's bladder cancer at 100 percent and additional service-connected disability separately ratable at 60 percent or more. As such, there is no basis for SMC prior to October 4, 2016, and the claim for TDIU is therefore moot for this period. As such, the appeal regarding the issue to establish TDIU prior to October 4, 2016, is dismissed. 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.