Citation Nr: 21077436 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 12-10 499 DATE: December 29, 2021 ORDER Before September 14, 2015, entitlement to special monthly compensation (SMC) based on a total disability rating plus 60 percent disability rating, or by being permanently housebound by reason of service-connected disabilities, is denied. REMANDED Entitlement to an initial disability rating greater than 30 percent for migraine headaches since January 4, 2013 is remanded. Entitlement to SMC based on the need of regular aid and attendance of another person due to service-connected disabilities is remanded. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment is remanded. FINDINGS OF FACT 1. Before September 14, 2015, the Veteran did not have a single service-connected disability rated as 100 percent disabling with additional service-connected disability ratable at 60 percent. 2. Before September 14, 2015, the Veteran is not shown to be permanently housebound by reason of his service-connected disabilities. CONCLUSION OF LAW Before September 14, 2015, the criteria have not been met to establish entitlement to SMC based on a total plus 60 percent disability rating, or permanent housebound status. 38 U.S.C. §§ 501, 1114, 5107; 38 C.F.R. §§ 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1990 to May 1990 and from September 1990 to March 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions in February 2017, March 2017, and June 2018. The Veteran has multiple pending appeals. A detailed procedural history of the claims was included in the prior July 2021 decision by the Board and need not be repeated here. However, regarding the matter of an earlier entitlement to SMC based on statutory housebound status, previously remanded in July 2021 as intertwined with a separately pending claim of entitlement to a total disability rating due to individual unemployability (TDIU), that appeal has since been adjudicated and TDIU granted from July 17, 2009 to September 14, 2015. Thus, as substantial compliance with all prior Board remand instructions on this matter has been completed, the issue is now returned to the Board for further appellate review. In contrast, the evidentiary record has not been adequately developed in substantial compliance with all prior Board remand instructions regarding the claim of an increased rating for migraines, and an additional remand is required to complete the requested development. See Stegall v. West, 11 Vet. App. 268 (1998). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge regarding the issues of increased rating for migraine headaches and an earlier effective date for SMC at the statutory housebound level. A transcript of the Veteran's hearing testimony is considered as evidence in this appeal. Before September 14, 2015, entitlement to SMC based on a total plus 60 percent disability rating, or by being permanently housebound by reason of service-connected disabilities, is denied. Entitlement to special monthly compensation at the "housebound" rate is established when one of two conditions is met. First, it is payable when a veteran has a disability rated as 100 percent disabling and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). This may be referenced informally as a "statutory housebound" status because the evidence is not required to show that a veteran is factually confined to his or her home or residence. Instead, if entitled, the Veteran would be compensated at the same rate as if he were so confined, but purely due to the mathematical disability calculations established by operation of the statute. The second method of eligibility for this benefit is established when a veteran is permanently housebound by reason of service-connected disability or disabilities. This status may be referenced as "factually housebound," and is met where a veteran is "substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resulting confinement will continue throughout her lifetime." 38 C.F.R. § 3.350(i)(2). In this case, the Veteran is not institutionalized, and the record does not reflect that he has been substantially confined to his home due to his service-connected disabilities at any point during the appeals period. Instead, considering the record as a whole, there are many instances of the Veteran reporting his ability to attend to obligations outside the home is hampered primarily by transportation issues involving access with his wheelchair, but not that he is confined to the premises of the home due to his service-connected disabilities. Instead, in a June 2015 VA examination for housebound status, although the examiner included several diagnoses for which service connection is not established (diabetes, hypertension, cervical radiculopathy), the Veteran is reported as being able to leave the home or immediate premises "as needed." An April 2015 occupational therapy consultation further noted that the Veteran was independent in all activities of daily living except lower body dressing, which is not indicative of an impairment so severe as to result in confinement within the home. In all, before September 14, 2015, the Veteran is not shown to be permanently housebound by reason of his service-connected disabilities. SMC at the housebound rate has been established since September 14, 2015 based on the Veteran's total plus 60 percent disability, i.e., a statutory housebound status. This is based upon the date at which the Veteran's service-connected schizoaffective disorder is first established as 100 percent disabling, with additional separate disabilities combining to 60 percent. The issue on appeal before the Board is whether the Veteran is entitled to SMC at this rate before September 14, 2015. However, the Board finds that this is the earliest date at which the Veteran meets the criteria for SMC housebound on a statutory basis of 100 plus 60 percent disability. The Board has considered the recent grant of a TDIU rating for the period from July 17, 2009 to September 14, 2015 to determine whether the grant of TDIU in this case constitutes a single disability rated as 100 percent disabling, but that is not the circumstance given the facts of this case. Instead, the grant of this benefit explicitly states that the TDIU rating is not warranted due to any one of his service-connected conditions, but only when those disabilities are considered in combination is the Veteran determined to be unable to secure and follow gainful employment. Rating decision, September 2021. The Board concurs with this finding in this instance because although the Veteran's schizoaffective disorder alone caused significant impairment, it is not shown to render him unable to secure and follow gainful employment independent of the Veteran's other service-connected disabilities for the relevant period. As such, the award of a TDIU rating in this case does not represent a single disability evaluated as 100 percent disabling. Thus, prior to September 12, 2015, the disability ratings in effect were schizoaffective disorder, depressive type (50 percent), obstructive sleep apnea (50 percent), migraine (30 percent), bilateral hearing loss (20 percent), corns and callosities of the right foot (10 percent), corns and callosities of the left foot (10 percent), tinnitus (10 percent), dermatitis (zero percent), and hemorrhoids (zero percent). As such, prior to September 12, 2015, there is no single disability rated as 100 percent disabling and statutory SMC cannot be established based on a 100 percent disability plus 60 percent. The appeal must be denied. REASONS FOR REMAND 1. Entitlement to an initial disability rating greater than 30 percent for migraine headaches since January 4, 2013 is remanded. A remand order by the Board imposes a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); but see Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (no violation when the examiner "substantially complied with the Board's remand order"). In the prior July 2021 remand, based on a single finding documented in the record of "ocular migraine" the Board instructed a VA examiner to determine if the Veteran's migraines manifested in impairment of vision, and if so, the examiner was asked to indicate "when such occurred (e.g., a date-range), and obtain a full description from the Veteran concerning the frequency, duration, and severity of such manifestations." An August 2021 VA opinion then stated that intermittent vision impairment or disruption is a known symptom of migraine supported by medical literature. A subsequent September 2021 examination by a Doctor of Optometry specified that the Veteran did not report decreased vision from his migraine headaches, objectively had no diagnosis that would explain the severely reduced vision without improvement presented on examination, and the Veteran was a "paradoxical responder which was confirmed with Veteran able to see, read, and write" when completing patient intake forms prior to the examination. Neither of these examinations included the information requested by the Board remand as to the frequency, duration, and severity of any visual symptoms of migraine experienced by the Veteran. As such, there has not been substantial compliance with the Board's previous remand directives regarding this issue and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The September 2021 examination report also indicates that the Veteran reported recent eye examination by a private doctor within the prior 6 months. Although the examiner requested a copy of the report from the Veteran and directly from the eye care provider, no private treatment records were received. VA should seek authorization from the Veteran to obtain these records. 2. Entitlement to SMC based on the need of regular aid and attendance of another person due to service-connected disabilities is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to SMC due to the Veteran's need for regular aid and attendance because no VA examiner has adequately opined whether the Veteran's documented need for some assistance in the home is due to his service-connected schizoaffective disorder, sleep apnea, migraine, irritable bowel syndrome, bilateral hearing loss, corns and callosities of the bilateral feet, tinnitus, dermatitis, and hemorrhoids, as distinguished from the Veteran's multiple other nonservice-connected disabilities, if such distinction is possible. The Veteran should be provided an opportunity to report for a VA examination to ascertain and record manifestations of his service-connected disabilities alone as pertinent to his need for the regular aid and attendance of another person. 3. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only, is remanded. The Veteran asserts that he is entitled to this allowance due to his "feet and knee problems" and he "can't use [his] feet at all." Veteran's statement, August 2017. Service connection is in effect for corns and callosities of both feet, but for no other lower extremity disabilities including the knees. Upon VA examination in June 2021, the Veteran reported he uses a wheelchair "because he cannot walk due to pain, swelling, and bleeding in his feet from fissures and callosities as well as his knees and back." Upon physical examination of the feet, there was evidence of heel hyperkeratosis (thickening of the skin) and fissuring (splitting of the skin), but no bleeding, redness, or swelling present at the time of examination. As above, the Board is unable to discern the functional impact presented by the Veteran's service-connected disabilities alone. An additional medical opinion is required to reach this determination. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private physician or facility treating vision impairment/disruption due to migraine. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected migraine, specifically as to the reported non-headache symptoms of vision disruption/impairment that may be associated with migraine. The examiner should provide a full description of the disability, including description of the frequency, duration, and severity of all visual manifestations of migraine. 3. Schedule the Veteran for a VA examination to determine and record manifestations of his service-connected disabilities alone as pertinent to his need for the regular aid and attendance of another person. The examiner is asked to describe in thorough detail the Veteran's ability or inability to dress or undress, keep himself ordinarily clean and presentable, attend to the wants of nature, and his incapacity (whether physical or mental) which requires care or assistance on a regular basis to protect himself from the hazards or dangers incident to his daily environment. The examiner should distinguish to the extent possible where any need for assistance is due to a service-connected disability as opposed to a nonservice-connected disability. However, if the examiner is unable to establish which disability leads to the need for aid and assistance in any particular area, or if the need is approximately balanced between a service-connected and nonservice-connected disability, this should be stated for the record, and the need should be attributed to the service-connected disability. 4. Schedule the Veteran for a VA examination to determine the extent of functional impairment presented by his service-connected corns and callosities of the bilateral feet, as distinguished to the extent possible from any nonservice-connected disabilities affecting the feet including diabetes and neuropathy. VA must ultimately determine whether the Veteran's service-connected foot disabilities alone result in the "loss of use" of one or both of his feet, and a full description of the current functional impairment based on corns and callosities alone will be important evidence in support of the Veteran's claim. If the examiner is unable to establish which disability leads to any impairment in use of the feet, or if any loss of use of the feet is approximately balanced between the service-connected corns and callosities as cause and one or more nonservice-connected disabilities as cause, this should be stated for the record. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.