Citation Nr: 21042202 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 12-10 499 DATE: July 12, 2021 ORDER Entitlement to an earlier effective date of September 14, 2015 for the grant of a 100 percent disability rating for service-connected schizoaffective disorder is allowed. Entitlement to an earlier effective date of September 14, 2015 for the grant of special monthly compensation at the statutory housebound rate is allowed. REMANDED Entitlement to an initial disability rating in excess of 30 percent for service-connected migraine headaches, from January 4, 2013, is remanded. Entitlement to an effective date prior to September 14, 2015 for the grant of special monthly compensation based on the statutory housebound criteria being met is remanded. Entitlement to special monthly compensation based on the need for regular aid and attendance is remanded. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment or automobile adaptive equipment only is remanded. FINDINGS OF FACT 1. In an August 2013 rating decision, the RO granted service connection for schizoaffective disorder, depressive type (schizoaffective disorder) and assigned an evaluation of 50 percent effective October 7, 2008; the Veteran submitted a notice of disagreement (NOD) and the RO issued a statement of the case (SOC) in April 2015. 2. The evidence is at least in equipoise as to whether the Veteran's agent received a copy of the April 2015 SOC; a substantive appeal was submitted in April 2020. 3. From September 14, 2015, the Veteran's service-connected schizoaffective disorder manifested in persistent hallucinations, paranoia, and intermittent inability to perform activities of daily living. 4. Following the grant of an effective date of September 14, 2015 for the assignment of a 100 percent disability rating for schizoaffective disorder, the Veteran will be in receipt of a 100 percent disability rating for one disability with additional service-connected disability with a combined rating of at least 60 percent. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the August 2013 decision granting service connection and an initial 50 percent disability rating for schizoaffective disorder, depressive type did not become final; the appeal seeking an initial disability rating in excess of 50 percent for schizoaffective disorder remained pending. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.302, 20.305. 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for an earlier effective date of September 14, 2015 for the grant of a 100 percent evaluation for service-connected schizoaffective disorder are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 3. The criteria for an effective date of September 14, 2015 for the grant of special monthly compensation at the statutory housebound rate are met. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony on issues including entitlement to an effective date prior to January 19, 2017 for the assignment of a 100 percent evaluation for his service-connected schizoaffective disorder, entitlement to an initial disability rating in excess of 30 percent for service-connected migraine headaches, and entitlement to an effective date prior to January 19, 2017 for the award of special monthly compensation at the statutory housebound level at an April 2018 Board hearing held at his local RO before the undersigned Veterans Law Judge. A copy of the transcript of the hearing is of record. The Veteran did not request an optional hearing for his appeals concerning eligibility for financial assistance in the purchase of an automobile and/or automobile adaptive equipment or entitlement to special monthly compensation at the aid and attendance level. The Board may therefore proceed with appellate review of these issues. In a December 2018 decision, in relevant part, the Board denied the claims for entitlement to an evaluation in excess of 30 percent for migraine headaches from January 4, 2013, entitlement to an effective date earlier than January 19, 2017 for the grant of a 100 percent rating for schizoaffective disorder, and entitlement to an effective date earlier than January 19, 2017 for the grant of special monthly compensation based on statutory housebound status. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court), which issued a September 2019 Order pursuant to a Joint Motion for Partial Remand (JMR) vacating these portions of the Board's December 2018 decision and remanding the matters back to the Board for further review. Also in the December 2018 decision, the Board dismissed appeals concerning entitlement to service connection for a respiratory disorder, posttraumatic stress disorder (PTSD), a joint disorder, and astigmatism, and entitlement to an initial compensable disability rating for hemorrhoids and a disability rating in excess of 20 percent for bilateral hearing loss, finding that they had been withdrawn by the Veteran at the April 2018 Board hearing. The Veteran appealed the dismissals to the Court, and in the September 2019 Order, pursuant to the JMR, the Court vacated the dismissals and remanded the matters back to the Board to determine whether the Veteran withdrew his claims with full understanding of such withdrawals, as required by the United States Court of Appeals for the Federal Circuit's (Federal Circuit) holding in Acree v. O'Rourke, 891 F.3d 1009, 1013 (Fed. Cir. 2018). Having since received clarification from the Veteran that he does not wish to withdraw any issue on appeal, these matters await scheduling for a Board hearing, as previously requested by the Veteran on his substantive appeal. These issues will be the subject of a future Board decision or decisions. Also in December 2018, the Board remanded issues including entitlement to service connection for obstructive sleep apnea and a gastrointestinal disorder, entitlement to an initial compensable disability rating for dermatitis, and entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 17, 2017 for further development. Such development is still ongoing, and these issues will be the subject of a future Board decision or decisions. Finally, as will be discussed in greater detail below, the Board has found that the appeal seeking an initial disability rating in excess of 50 percent prior to September 14, 2015 for service-connected schizoaffective disorder, depressive type remains pending, and has yet to be scheduled for a requested Board hearing. This issue will be the subject of a future Board decision. 1. Entitlement to an effective date of September 14, 2015 for the grant of a higher 100 percent disability rating for service-connected schizoaffective disorder is granted. The Veteran seeks an effective date prior to January 19, 2017 for the assignment of a 100 percent disability rating for service-connected schizoaffective disorder. The Veteran was granted service connection for schizoaffective disorder in an August 2013 rating decision, wherein the RO assigned an evaluation of 50 percent effective October 7, 2008. The Veteran submitted a NOD in September 2013; and the RO issued a SOC, continuing the 50 percent evaluation in April 2015. No substantive appeal was received within the 60-day period following issuance of the April 2015 SOC. The Veteran was provided with a VA examination addressing the severity of his service-connected schizoaffective disorder in January 2017, in connection with his appeal seeking a TDIU. In a February 2017 rating decision, the RO increased the evaluation for the Veteran's schizoaffective disorder to 100 percent, effective from January 19, 2017, based on findings at the examination. The Veteran appealed, seeking an earlier effective date for the award of the 100 percent evaluation. Generally, the effective date for a claim seeking an increased rating for an already service-connected disability that is based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, the effective date may also be the earliest date as of which it is "factually ascertainable" that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). Determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating, as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." See Hazan, 10 Vet. App. at 521. While the Veteran did not submit a claim for an increased rating for his schizoaffective disorder, the Board finds that the evidence demonstrates that the appeal seeking an initial disability rating in excess of 50 percent for schizoaffective disorder remains pending. An appeal consists of a timely filed written notice of disagreement (NOD) and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. The SOC will be forwarded to the appellant at the latest address of record and a separate copy provided to his or her representative. 38 C.F.R. § 19.30(a). A substantive appeal consists of a properly completed VA Form 9, Appeal to Board of Veterans' Appeals, or correspondence containing the necessary information. 38 C.F.R. § 20.202. Proper completion and filing of a substantive appeal are the last actions an appellant needs to take to perfect an appeal. Id. The substantive appeal must be filed within 60 days from the date that notification of an SOC is sent to the claimant, or within the remainder of the one-year period from the date of mailing of the notification of the original determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). An extension of the 60-day period for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Id. Under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice by VA. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014). This presumption may only be rebutted with "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Such evidence includes "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Boyd, 27 Vet. App. at 72. The mere assertion that the notice was not received does not by itself constitute clear evidence rebutting the presumption. Id. However, the presumption of regularity may be rebutted where there is evidence that (a) VA used an incorrect address on the mailing in question or (b) the mailing was returned as undeliverable and "there were other possible and plausible addresses available to VA" at the time. Id. at 72. The Veteran's representative agent has asserted that he never received a copy of the April 2015 SOC. When considering correspondence from the agent, received by VA in May 2015, requesting a copy of a recent VA decision of which the Veteran had informed him, a March 2016 response from VA providing the agent with "VA rating decisions in the claims folder," and a potential irregularity regarding the carbon copy line on the April 2015 SOC, the Board finds that there is clear evidence rebutting the presumption of regularity, and the evidence of record is at least in equipoise that the Veteran's representative did not receive a copy of the April 2015 SOC. Review of the record further does not demonstrate that a copy of the file in total, which would have contained the SOC in question, was ever requested or provided to the agent. As it appears that the Veteran's representative never received a copy of the April 2015 SOC, the 60-day period for filing the substantive appeal never commenced; thus, the May 2020 VA Form 9 may stand-in as a timely substantive appeal concerning the claim for a higher initial disability rating for service-connected schizoaffective disorder. The Veteran's appeal seeking entitlement to an effective date prior to January 19, 2017 for the award of a 100 percent disability rating for schizoaffective disorder may therefore be granted on the basis that the appeal seeking a higher initial disability rating for schizoaffective disorder for the entire appeal period remained pending. Considering the evidence of record, the Board finds that an effective date of September 14, 2015 for the 100 percent evaluation is warranted. The record contains a VA mental health treatment plan note and psychiatric impairment questionnaire filled out by the Veteran's VA psychologist, both dated September 14, 2015. The questionnaire notes that the Veteran was experiencing chronic hallucinations/delusions with bouts of depression, and intermittent inability to perform activities of daily living. The treatment plan note documents the Veteran's report of hearing voices and experiencing paranoia daily. As these records represent evidence that such symptoms were occurring with a frequency which could approximate the level of disability contemplated by a 100 percent evaluation under the rating schedule, and the Veteran's appeal seeking a higher initial disability rating for schizoaffective disorder was pending at that time, the Board will resolve all reasonable doubt in the Veteran's favor and find that an earlier effective date of September 14, 2015 is warranted for the award of a 100 percent evaluation for service-connected schizoaffective disorder. 2. Entitlement to an effective date of September 14, 2015 for the award of Special Monthly Compensation at the statutory housebound rate is granted. Special monthly compensation (SMC) at the 38 U.S.C. § 1114(s) rate is payable where a veteran has a single service-connected disability rated as 100 percent and (1) 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, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Where there is no one disability evaluated under the rating schedule as 100 percent disabling, a TDIU due to a single service-connected disability will qualify. Following implementation of this decision, the Veteran will have been in receipt of a 100 percent disability rating for a single service-connected disability, schizoaffective disorder, from September 14, 2015. On that date, the Veteran was also in receipt of service connection for the following disabilities at the ratings specified: migraine headaches at 30 percent; bilateral hearing loss at 20 percent; corns and callosities of the right foot at 10 percent; corns and callosities of the left foot at 10 percent; and tinnitus at 10 percent. Considering the bilateral factor, the evaluations for these additional service-connected disabilities combine for a total of at least 60 percent using the Combined Ratings Table under 38 C.F.R. § 4.25. The Veteran thus qualifies for SMC at the statutory housebound rate from September 14, 2015. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 30 percent for service connected headaches from January 4, 2013 is remanded. The Veteran filed a claim for service connection for headaches on July 17, 2009. A December 2015 Board decision granted the claim, and a February 2017 RO decision assigned a 30 percent disability rating with an effective date of July 17, 2009. In a December 2018 decision, the Board granted a higher 50 percent evaluation for the Veteran's service-connected headaches prior to January 4, 2013 and denied an evaluation in excess of the 30 percent assigned from January 4, 2013. The Veteran appealed the latter denial to the Court, and the portion of the decision denying an evaluation in excess of 30 percent for service-connected headaches was vacated and remanded to the Board for further review. The issue of entitlement to an initial disability rating in excess of 30 percent for migraine headaches from January 4, 2013 to present therefore remains on appeal. The Veteran was most-recently provided with a VA examination to assess the severity of his headache disability in January 2017. At that time, he reported daily "prostrating" headaches, without non-headache symptoms, and once a month characteristic prostrating attacks of headache pain. At the April 2018 Board hearing, the Veteran reported experiencing migraine headaches three or four times a day which affect his vision. He stated that at least twice a day, the migraines are so intense that he has to take medication and lay down. Inasmuch as this indicates a possible worsening of his headache disability since the most recent VA examination, additional examination is needed to assess the current severity and manifestations of the Veteran's service-connected headaches. The Board further notes that a January 2016 VA optometry consultation documented the Veteran's report of a "dimming out" of his peripheral vision which occurred several times per day and lasts about 20 minutes at a time before his vision returned to normal. The physician assessed the Veteran with ocular migraine, and stated that his complaints were consistent with such diagnosis. While the claims file contains additional optometry records for the Veteran documenting complaints regarding his visual acuity, this is the only mention of ocular migraine in the claims file. On remand, the examiner should address whether the Veteran suffers/has suffered from vision issues related to his migraine headaches. 2. Entitlement to an effective date prior to September 14, 2015 for the award of special monthly compensation based on the statutory housebound criteria being met is remanded. Upon implementation of this decision, the Veteran will be assigned an effective date of September 14, 2015 for the award of special monthly compensation based on the statutory housebound criteria being met, as that is the effective date awarded for the increased 100 percent evaluation for schizoaffective disorder. The issue of entitlement to a TDIU prior to January 19, 2017 was previously remanded in December 2018, and is presently in remand status (although now should be considered as an appeal seeking entitlement to a TDIU prior to September 14, 2015). As a decision on the remanded issue of entitlement to a TDIU could significantly impact a decision on the issue of entitlement to an effective date prior to September 14, 2015 for the award of SMC at the housebound rate, the issues are inextricably intertwined. A remand of the latter claim is therefore needed. 3. Entitlement to special monthly compensation based on the need for regular aid and attendance is remanded. As decisions on the pending appeals concerning entitlement to service connection for a respiratory disorder and a joint disorder could significantly impact a decision on the issue of entitlement to SMC based on the need for regular aid and attendance, they are inextricably intertwined, and a remand of the latter claim is therefore needed. 4. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only is remanded. Relevant evidence has been added to the claims file since the most recent adjudication of this appeal, the June 2019 statement of the case. As of yet, neither the Veteran nor his representative have agreed to requests for waiver of AOJ consideration of this new evidence. Therefore, remand is needed for the AOJ to consider it in the first instance and to issue a supplemental statement of the case. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity and manifestations of his service-connected migraine headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is also asked to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraine headaches have manifested in impairment of vision at any time since January 4, 2013. If so, the examiner should 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. If impaired vision is more-likely than not related to an eye condition unaffected by the service-connected migraine headaches, the examiner should so state. The examiner's attention is directed to a January 2016 VA optometry consult wherein the optometrist found that the Veteran's description of a dimming out of peripheral vision was consistent with ocular migraine. A full rationale must be provided for any opinion/conclusion presented. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge. 2. After completing all necessary development, readjudicate the issues of entitlement to an initial disability rating in excess of 30 percent for service connected headaches from January 4, 2013, entitlement to an effective date prior to September 14, 2015 for the award of SMC at the statutory housebound rate, entitlement to special monthly compensation based on the need for regular aid and attendance, and eligibility for financial assistance in the purchase of an automobile and automobile adaptive equipment or automobile adaptive equipment only. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.