Citation Nr: 21039997 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 08-02 320 DATE: July 2, 2021 ORDER An extraschedular disability rating for vertigo prior to January 2, 2013 is denied. An extraschedular disability rating for sickle cell anemia prior to January 2, 2013 is denied. Total disability rating due to individual unemployability (TDIU) prior to January 2, 2013 is denied. Entitlement to special monthly compensation based on housebound rate (SMC HB) prior to October 18, 2017 is denied. REMANDED ISSUE Entitlement to special monthly compensation based on aid and attendance (A&A) is remanded. FINDINGS OF FACT 1. The Veteran's vertigo did not contribute to the governing norms in exceptional cases such as marked interference with employment or frequent periods of hospitalization prior to January 2, 2013, and an increased rating is not necessary to accord with principles of justice prior to January 2, 2013. 2. The Veteran's sickle cell anemia did not contribute to the governing norms in exceptional cases such as marked interference with employment or frequent periods of hospitalization prior to January 2, 2013, and an increased rating is not necessary to accord with principles of justice prior to January 2, 2013. 3. The Veteran was able to secure and maintain substantially gainful employment prior to January 2, 2013. 4. The Veteran was not assigned a disability rating that is independently 60 percent disabling in addition to a total disability rating prior to October 18, 2017. CONCLUSIONS OF LAW 1. The criteria for an extraschedular disability rating for vertigo prior to January 2, 2013 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321. 2. The criteria for an extraschedular disability rating for sickle cell anemia prior to January 2, 2013 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321. 3. The criteria for TDIU prior to January 2, 2013 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 4. The criteria for special monthly compensation (SMC) based on housebound status are not met. 38 U.S.C. §§ 1114 (l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from January 1973 to October 1975. These matters come to the Board of Veterans' Affairs (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office made in October 2007, November 2007, and June 2014. This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in June 2013, and a transcript of the hearing is of record. These matters have been subject to previous appellate review, and, most recently, these matters were remanded for further development in September 2020. Further development in substantial compliance with the Board's previous remand instructions has been completed. The Board notes that in September 2020 the Board remanded the Veteran's claims for service connection for hypertension and diabetes mellitus for further development. In March 2021 however, VA granted service connection for hypertension and diabetes mellitus. This is considered a full grant of the Veteran's requested prayer of relief, and the Board shall not address these matters any further. The Board also notes that in September 2020 the Board remanded the Veteran's extraschedular claims as well as a claim for TDIU cover time periods after January 1, 2013 for further development. In March 2021 however, VA granted schedular TDIU effective January 2, 2013; a full grant of the Veteran's requested prayer of relief effective January 2, 2013. Additionally, schedular TDIU takes into consideration all the symptoms of the Veteran's previously service-connected disabilities; see 38 C.F.R. § 4.16; and, as such, the Veteran no longer could claim to manifest symptoms that were not being compensated for under the schedular criteria any longer; rendering the Veteran's extraschedular claims moot effective January 2, 2013. As such, the Board as recharacterized the Veteran's extraschedular claims accordingly. 1. An extraschedular disability rating for vertigo prior to January 2, 2013 is denied. 2. An extraschedular disability rating for sickle cell anemia prior to January 2, 2013 is denied. At issue is whether the Veteran is entitled to extraschedular disability ratings for vertigo and sickle cell anemia prior to January 2, 2013. The weight of the evidence indicates that the Veteran is not entitled to extraschedular disability ratings. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321 (b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board previously found that in August 2013 the Board recognized that the Veteran manifested vertigo symptoms that were not recognized by the rating schedule. Additionally, the Veteran's symptomatic sickle cell anemia required extraschedular consideration as a matter of law. 38 C.F.R. § 4.117, Diagnostic Code 7714, Note. Turning to the second step of the extraschedular analysis however, the evidence of record indicates that the Veteran was gainfully employed as a case worker until January 2, 2013. Thus indicating that the Veteran did not manifest any marked interference with employment until after January 2, 2013. Additionally, the Veteran's treatment records are silent for hospitalization so frequent as to be considered to meet the criteria for governing norms. Even granting arguendo (which the Board does not) that the Veteran met the criteria for governing norms, The Veteran has been assigned a disability rating of 80 percent prior to November 21, 2006, and a disability rating of 90 percent thereafter, and the record is silent for any symptomology or suffering or so traumatic that the assignment of a disability rating of 80 or 90 percent (as opposed to a total disability) can be considered unjust. 3. TDIU prior to January 2, 2013 is denied. At issue is whether the Veteran is entitled to TDIU prior to January 2, 2013. In order to be assigned TDIU, the Veteran's previously service-connected disabilities must prevent the Veteran from securing and maintaining substantially gainful employment. 38 C.F.R. § 4.16. The evidence of record indicates that the Veteran was gainfully employed as a case worker until January 2, 2013. Therefore, the Veteran's previously service-connected disabilities did not prevent the Veteran from securing and maintaining substantially gainful employment, and TDIU prior to January 2, 2013 is denied. 4. SMC HB prior to October 18, 2017 is denied. At issue is whether the Veteran is entitled to SMC at the housebound rate prior to October 18, 2017. The weight of the evidence indicates that he is not. The housebound rate, the law provides for two avenues through which to receive SMC HB: "statutorily housebound," see 38 C.F.R. § 3.350(i)(1), and "housebound-in-fact," see 38 C.F.R. § 3.350(i)(2). The statutorily housebound rate will be assigned if there are 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 C.F.R. § 3.350 (i)(1). At issue in this case is whether the Veteran meets the statutory SMC HB rate. In this case, the Veteran was awarded TDIU in effective January 2, 2013 based on the combined effects of his psychiatric disorder, sickle cell disease, left eye retinopathy, vertigo, diabetes, and diabetic complications. SMC HB was been granted effective October 18, 2017 as the Veteran met these criteria with a total disability rating for a psychiatric disability effective October 18, 2017 and the previously granted TDIU is by definition over 60 percent disabling. In order to grant SMC HB at an earlier date, the Veteran's TDIU would have to be based upon a single disability with other disabilities combining to 60 percent or more. For example, if the Veteran's psychiatric disability alone rendered him unemployable, his additional service-connected disabilities would combine to a rating greater than 60 percent, and he would be entitled to SMC HB. As the Veteran's TDIU is based on a combination of his disabilities, the Board looked to see if he would be considered unemployable as a result of any single disability. If not, then the Board has to deny SMC HB. The evidence of record does not establish that a single disability rendered the Veteran unemployable prior to the current establishment of SMC HB. For purposes of considering whether or not a single disability rating renders the Veteran unemployable, the Board considered the Veteran's diabetes and any service-connected diabetic complications such as neuropathy, nephropathy, and retinopathy as a single disability. REMAND Entitlement to special monthly compensation based on the need for aid and attendance, or by reason of being housebound is remanded. The issue of entitlement to special monthly compensation based on the need for aid and attendance, or by reason of being housebound is remanded to correct a duty to assist error that occurred prior to the Veteran's election of the Higher Level Review RAMP lane. Based on the evidence of record at that time, VA had a duty to assist the Veteran by affording him an Aid & Attendance examination in accordance with 38 C.F.R. § 3.159 (c)(4). The Veteran seeks entitlement to special monthly compensation based on aid and attendance or housebound status. Under 38 U.S.C. § 1114 (l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 C.F.R. § 1114 (l); 38 C.F.R. § 3.350 (b). Under 38 C.F.R. § 3.352 (a), factors considered in determining the need for regular aid and attendance include, in pertinent part: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Here, the record does not contain sufficient competent medical evidence to decide the claim. On remand, the Veteran should be afforded a examination to ascertain the severity of his service connected visual impairment and whether the severity of his service connected disabilities require the regular aid and attendance of another individual. The matter is REMANDED for the following action: 1. Schedule the Veteran for an Aid and Attendance examination. The examiner should review the entire claims file and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should also consider VA treatment records evaluating the Veteran's functional capacity. In particular, considering the nature and level of impairment resulting from service-connected disabilities, the physician should render specific findings as to whether the Veteran is able to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he is unable to attend to the wants of nature; and whether he suffers from physical or mental incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. In providing the requested information, the examiner must consider and discuss all pertinent medical and lay evidence, to include statements from the Veteran regarding his need for aid and attendance. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Seaton 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.