Citation Nr: 25003547 Decision Date: 03/13/25 Archive Date: 03/13/25 DOCKET NO. 05-01 060 DATE: March 13, 2025 ORDER Entitlement to special monthly compensation (SMC) under 38 U.S.C. 1114(s) and 38 C.F.R. 3.350(i)(1), for a service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more, from May 22, 2009, is granted. REMANDED Entitlement to increased evaluations for a cervical spine disability on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Based upon the language of the Board's October 2020 decision, which also remanded the issue of entitlement to an extra-schedular rating for the service-connected cervical spine disability, the Veteran has maintained an argument of entitlement to SMC, as of May 2009, as part and parcel to the ongoing claim for an extraschedular rating for the cervical spine disability. 2. As of May 22, 2009, entitlement to a TDIU based upon the single service-connected disability of PTSD, is warranted; additional disabilities from May 22, 2009, present a combined rating of 60 percent or greater. CONCLUSIONS OF LAW The criteria for a SMC for a service-connected disability rated as total and additional service-connected disability or disabilities independently ratable at 60 percent or more, have been met. 38 U.S.C. § 1114(s) (2018); 38 C.F.R. § 3.350 (2024). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1962 to February 1964, and from May 1964 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision. A full discussion of the procedural history is set forth in the Board's November 2022 decision, which denied entitlement to an extraschedular rating for a cervical spine disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2023 order, the Court granted the parties' Joint Motion for Remand (JMR), thereby vacating the November 2022 decision, and returning the matter to the Board for further appellate action. The only "error," identified by the JMR was the Board's failure to address the Veteran's purported request for 90 days to submit additional evidence, allegedly presented within a September 26, 2022, letter accompanying his VA Form 9. See August 2023, JMR (pg. 1). In the Board's March 2024 remand order, the issue outlined in the JMR, as noted above, was remedied as the matter was remanded to afford the Veteran an additional VA examination, as the last examination of record was, at the time, nearly three years old. The remand of the case provided the Veteran with the additional opportunity to submit evidence in support of his claim. The Board finds that the RO substantially complied with the remand directives and that the case is ripe for further appellate action at this time. Stegall v. West, 11 Vet. App. 268, 271 (1998) Special Monthly Compensation A brief review of the recent appellate proceedings in this matter is necessary to fully articulate the Board's jurisdiction over the issue of entitlement to SMC based upon a determination of TDIU as being awarded predicated upon a single disability. Quite unfortunately, none of the appellate filings, to date (including the parties' JMR before the Court), have addressed the convoluted history which gives rise to the instant claim. a. Procedural History In October 2020, the Board issued two decisions. The first of the two decisions was issued on October 15, 2020, with notice sent later that same month. See October 15, 2020, Board Decision (Oct. 26, 2020, Notification Letter). In pertinent part, that decision denied a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD). On October 21, 2020, the Board issued another decision, the notification of which was not sent until November 27, 2020. As relevant to the matters presently before the Board, the issue of entitlement to an extraschedular rating for the service-connected cervical spine disability was remanded. Despite the remand of that issue, in that same decision, the three-judge Board panel also granted entitlement to a TDIU, "due to his [the Veteran's] service-connected cervical spine disability since June 1, 2004." October 21, 2020, Board Decision (pg. 20). As of June 1, 2004, the Veteran is service-connected for the following disabilities and corresponding ratings related to the cervical spine: residuals of neck trauma (cervical spine), 30 percent; bilateral upper extremity radiculopathy from residuals of neck trauma, both extremities rated at 20 percent. With consideration of the bilateral factor as applied to the upper extremity radiculopathy disabilities, the combined rating for the disabilities is 60 percent, thereby meeting the requisite criteria for a TDIU based upon a single disability, i.e., the cervical spine disability, as elucidated by the Board in the October 2020 decision. Despite the Board's express language, a November 2020 rating decision implemented the award as one based upon the totality of the Veteran's service-connected disabilities, which included the following additional ratings as of June 1, 2004: left lower extremity radiculopathy, associated with the lumbar spine, 20 percent; right lower extremity radiculopathy, associated with the lumbar spine, 10 percent; degenerative disc disease of the lumbar spine, 10 percent. The Board acknowledges that these disabilities arguably arose from the same reported injury, nevertheless, the Board's October 2020 decision was clear that TDIU was established based upon the disabilities of the cervical spine. In January 2021, the Veteran's representative submitted a letter to the VA arguing that as of May 22, 2009, the Veteran was entitled to SMC based upon, "...the October 21, 2020 BVA decision...that entitlement to individual unemployability is warranted based upon the service connected spine impairment alone. In addition, [the Veteran] is service connected for post traumatic stress disorder with an evaluation of 70% as of May 22, 2009. Thus, as of the date, [the Veteran] meets the criteria for special monthly compensation..." Jan. 1, 2021, Third Party Correspondence. During this time, the additional development ordered by the Board in the October 21, 2020 decision, was underway. See June 2021, VA Examination Reports; Supplemental Statement of the Case (SSOC). In response to the SSOC, the Veteran's representative submitted written argument along with a VA Form 9, asserting that in addition to the issues remanded by the Board on October 21, 2020 and addressed within the SSOC, the record also raised the issue of entitlement to SMC as TDIU "...is warranted based on the service connected psychiatric impairment alone...," with the additional service-connected disabilities providing a separate combined rating of 60 percent or higher. See July 2021, Form 9 (with accompanying correspondence). While the Board recognizes that the proper procedural route for raising the argument was not utilized, it is also acknowledged that the Veteran's representative was not informed until May 2022, that the issue raised in the July 2021 letter, concerning SMC was not certified to the Board as it was not properly on appeal. See May 2022, BVA Letter. This notification post-dates the available time-frame within which the Veteran could have perfected an appeal of the October 15, 2020 Board decision, which became final as to the issue of an increased rating for the service-connected PTSD disability. Moreover, although the Veteran attempted to raise the issue through the filing of a VA Form 9 in response to the SSOC, a February 2022 Deferred Rating (VA Form 21-6789), explains that the VA Form 9 was "erroneously" filed, as the SSOC was issued pursuant to a Board remand order. See February 2022, Deferred Rating. This deferred rating includes an admission that "no letter was sent to the Veteran and his attorney..." addressing the impropriety of the VA Form 9 filed in July 2021. Upon review of the record, it appears that none of the correspondence provided to the Veteran and his representative, addresses the arguments raised in the January 2021 correspondence. See Jan. 1, 2021, Third Party Correspondence. In August 2022, the Board remanded the claim for entitlement to an extraschedular rating for the service-connected cervical spine disability. After issuance of the September 2022 SSOC, the Veteran's representative, again, provided written argument for entitlement to SMC based upon an assertion that TDIU is warranted from May 22, 2009, solely based upon the service-connected PTSD disability, with additional disabilities evaluated at 60 percent or greater. See September 2022, Third Part Correspondence. In the November 2022 Board decision, entitlement to an extraschedular rating for the service-connected cervical spine disability was denied. See Novembre 2022, Board Decision. In that decision, the Board did not address any issues related to TDIU or SMC. Id. In addition, as previously indicated, upon appeal to the Court, the parties' JMR also failed to address any alleged error by the Board in declining to discuss or adjudicate TDIU or SMC. See August 2023, JMR. Nevertheless, following return of the case from the Court to the Board, the Veteran's representative continued to maintain the argument, providing a medical opinion in support thereof, in October 2023. See October 2023, Private Medical Opinion; March 2024, Third Party Correspondence. Finally, the Board remanded the matter in March 2024, pursuant to the directives from the JMR. b. The Board's Jurisdiction Given the foregoing, the Board claims jurisdiction over an issue that, while not explicitly stated as being on appeal, is incidental to the adjudications of the claim giving rise to the instant appeal stream. The Veteran has effectively raised a claim for SMC based upon a total disability rating with additional disabilities independently ratable at 60 percent or more. See 38 U.S.C. § 1114(s). The Board acknowledges that this issue has not been addressed or adjudicated by the agency of original jurisdiction. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that a request for an increase in benefits should be inferred as a claim for SMC regardless of whether it has been raised by the Veteran or previously adjudicated. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Although the issue may be considered as not yet ripe for appellate consideration as it is a downstream issue to the question of entitlement to TDIU based solely upon PTSD, the Board finds that the specific facts and procedural posture of the case warrant consideration of the arguments presented at this juncture. First, the record reflects that the Veteran detrimentally relied upon the communications from the RO. Despite raising the argument of SMC for the first time in January 2021, no notification was provided to either the Veteran or his representative concerning the contention that SMC should be awarded in light of the award for TDIU. Perhaps recognizing that the argument made in the January 2021 correspondence was unavailing (as discussed in detail below), the subsequent July 2021 argument was submitted by the Veteran's representative. However, even this correspondence was not addressed until the May 2022 response from the RO. The Board finds that the Veteran would be negatively prejudiced by accepting the May 2022 communication as sufficient, as his period to appeal the October 2020, rating decision had well-since passed. Furthermore, the Veteran was not afforded an opportunity to present any further argument concerning the propriety of his claim for SMC as properly raised during the adjudication of the claim for an extra-schedular rating for the service-connected cervical spine disability. Regardless of the foregoing, it could also be argued that given the October 2020 Board Decision, which initially awarded entitlement to TDIU predicated solely upon the cervical spine disabilities, with an effective date of June 1, 2004, the remand of the issue of an extraschedular rating for the same disability necessarily carried with it the issue of ongoing entitlement to TDIU, as inextricably intertwined with the continued development. In the case of Harper v. Wilkie, the Court held that a claim for a TDIU, which has been awarded, remains in appellate status if the TDIU award is not effective from the date of claim for the underlying disability rating that is on appeal. Id. In this case, the issue of an extraschedular rating for the cervical spine disability spans the period on appeal from 2002. As a result, although the issue of an increased rating for PTSD is not expressly before the Board, the Board finds that it is incidentally related to the claim for increase of the cervical spine disability, and thus, the Board has jurisdiction to address the arguments as set forth herein. c. Combined Ratings and Special Monthly Compensation The Court has, on numerous occasions, clarified the distinction between the use of multiple service-connected disabilities that are considered as "one disability" for consideration of entitlement to a total disability rating based upon individual unemployability (TDIU), versus the requirement of "a service-connected disability rated as total," pursuant to total disability rating pursuant to 38 U.S.C. § 1114(s) and considered in the implementing regulations. See e.g., Youngblood v. Wilkie, 31 Vet. App. 412 (U.S. 2019); Buie v. Shinseki, 24 Vet. App. at 250 (2011) (explaining that a TDIU that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability (emphasis added)); Bradley v. Peake, 22 Vet. App. 280, 291 (U.S. 2008). In the case of Bradley v. Peake, the appellant sought entitlement to SMC based upon a combined 100 percent rating and a separate 70 percent rating for service-connected post-traumatic stress disorder (PTSD). The Court made clear that the instruction under § 4.16(a) to "treat multiple disabilities" caused by the same incident "as one is specifically applicable only to TDIU ratings," citing to 38 C.F.R. § 4.25(b), which commands that all disabilities are to be rated separately, as "confirming the understanding that the direction in § 4.16(a) to treat disabilities as one is an exception to the general rule, and limited to TDIU ratings." Bradley v. Peake, 22 Vet. App. 280, 291 (U.S. 2008). The Court's holding in that decision addressed the appellant's disabilities of scar and muscle injuries which all "arose out of a single accident," i.e., an in-service explosion, and provided a combined rating of 100 percent. Id. at 290. The Court found that the appellant's entitlement to SMC could not be established based upon such combined evaluation, as it did not meet the requirement for establishing "a single service-connected disability rated as 100 percent," as set forth within the implementing regulation. 38 C.F.R. § 3.350(i). The Court did, however, hold that "section 1114(s) does not limit 'a service-connected disability rated as total' to only a schedular rating of 100%," further expressing that the "...current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating." Accordingly, the Bradley Court held that the appellant's evaluation required reassessment, as he was previously awarded a TDIU based upon a combined disability rating which was later subsumed by an overall combined 100 percent evaluation. The Court explained that it should have been determined whether the appellant's PTSD rating alone warranted a TDIU award, as such award would have been based upon the single disability of PTSD, thereby meeting the requirement of "a service-connected disability rated as total," entitling the appellant to SMC under § 1114(s). Bradley, 22 Vet. App. at 294. In the case of Youngblood, the Court affirmed the Board's denial of an earlier effective date for entitlement to benefits under § 1114(s). In that case, although the appellant later met the 100 percent rating requirement under § 1114(s) for the assignment of a 100 percent evaluation for his service-connected polycystic kidney disease, he argued that his earlier award of a total disability rating based upon individual unemployability (TDIU) met the requirement of the opening clause in section 1114(s), thus entitling him to an earlier effective date for the award of special monthly compensation under § 1114(s). The disabilities for which the appellant had been awarded a TDIU were as follows: "...total left knee arthroplasty with history of degenerative joint disease, status post surgical procedures of the left knee, and degenerative joint disease of the right knee." Id. at 415. As the Court explained, the TDIU eligibility was, "...based on three disorders, two too many for him [the appellant] to benefit from section 1114(s) under the law as it presently exists." Id. (citing Buie v. Shinseki, 24 Vet. App. 242, 250 (2010) (per curiam) (holding that TDIU "based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of 'a service-connected disability' because that requirement must be met by a single disability")). Based upon the criteria as established by the regulations and the Court's further explanation for the application of such, the argument presented in the January 1, 2021, correspondence fails. See Jan. 1, 2021, Third Party Correspondence. The combined rating used to establish entitlement to a TDIU from June 1, 2004, based upon the disabilities associated with the cervical spine, cannot serve as the basis for consideration of an award under § 1114(s). The "one disability" clause, found within 38 C.F.R. § 4.16(a), as applied to the award of TDIU as instructed by the Board in the October 2020 decision, is meant to only be applied as a means of meeting the threshold schedular requirements for a TDIU, but is not to be applied for other considerations. Youngblood v. Wilkie, 31 Vet. App. at 416. The Court highlighted the language in the regulation "[f]or the above purpose," and found that it conveys a narrow application of the "one disability" clause, allowing claimants the "the right to combine the disability ratings assigned to his or her service-connected disorders and apply that combined rating toward meeting the threshold requirements of § 4.16(a)," but only for that limited purpose of meeting threshold requirements for a TDIU, not for consideration of the single disability rated at 100 percent for the application of § 1114(s). Id. d. Entitlement to TDIU Based Upon a Single Disability While the cervical spine disabilities may have been the basis for the initial award of TDIU, such award does not preclude later consideration of another disability as warranting a TDIU, in and of itself. As is relevant here, VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley, 22 Vet. App. at 294. Such is the case here, as the Board finds that the evidence establishes that the Veteran's service-connected PTSD, rated as 70 percent disabling, has, in and of itself, been productive of symptomatology which renders the Veteran unable to secure or follow substantially gainful employment. Turning to the evidence of record, the medical opinion, provided in October 2023 by the Veteran's long-time treating physician, unequivocally expresses an opinion that the Veteran is unable to perform the functions of gainful employment due to his PTSD symptoms and limitations arising therefrom. See October 2023, Medical Opinion (noting waiver of consideration of the evidence by the agency of original jurisdiction). The Board finds that this record is compelling and weighs heavily in favor of the claim as it demonstrates a familiarity with the Veteran's overall health and mental treatment background. The treating physician described the Veteran as experiencing symptoms which limit his ability to abide by a schedule or respond appropriately to others. It was also expressed that the Veteran struggles to maintain attention and concentration, perform activities within a schedule, complete a normal workweek without interruptions from psychological symptoms, and perform at a consistent pace without necessary periods of rest. Indeed, in the Board's October 15, 2020, decision, it was detailed that the Veteran's PTSD presents with symptoms of persistent memories, nightmares, sleep impairments, and isolation. He has also reported symptoms of depression, anxiety, suspiciousness, and difficulty in establishing and maintaining effective work and social relationships. The Board has also considered the Veteran's experience, training, and education in addition to the physical limitations presented by his service-connected PTSD. Given the evidence of record, the Board finds that the preponderance of the evidence weighs in favor of finding that the Veteran's PTSD disability alone, warrants entitlement to TDIU, as of May 22, 2009. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). e. Entitlement to Special Monthly Compensation Given the foregoing, the Board now considers the appropriate application of the statutory and regulatory language provided through 38 U.S.C. § 1114, 38 C.F.R. § 3.350, and the accompanying provisions of the remaining regulatory scheme, as applied to the instant case. As of May 22, 2009, the Veteran's remaining service-connected disabilities, aside from PTSD, include: residuals of neck trauma (cervical spine), 30 percent; bilateral upper extremity radiculopathy from residuals of neck trauma, both extremities rated at 20 percent; left lower extremity radiculopathy, 20 percent; right lower extremity radiculopathy, 10 percent; diabetes mellitus, type II, 20 percent; degenerative disc disease of the lumbar spine, 10 percent; and scar of the cervical spine, 10 percent (effective as of Sept. 2, 2005). Including the bilateral factor applied to the upper and lower extremity, the combined rating of the additional disabilities is 80 percent. Therefore, as of May 22, 2009, the record establishes that the Veteran is entitled to SMC pursuant to 38 U.S.C. § 1114(s). Accordingly, the Board grants SMC from May 22, 2009, pursuant to 38 U.S.C. § 1114(s), for the finding of a service-connected disability rated as total and additional service connected disabilities independently ratable at greater than 60 percent. REASONS FOR REMAND Increased Rating - Cervical Spine The Veteran has maintained an argument for entitlement to an extraschedular rating for his service-connected cervical spine disability, rated as 30 percent disabling from September 26, 2003, and 20 percent disabling prior thereto. 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 of the Compensation and Pension Service ("Director") for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38C.F.R. §3.321(b)(1). Although the Board does not have the authority to award an extraschedular rating prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In August 2022, the Board remanded the instant claim for referral to the Director. While an opinion was obtained by the AOJ in August 2022, the Board finds that given the additional evidence added to the claims file since that determination, an additional referral is necessary to afford the Veteran due process of his claim. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). More specifically, an additional VA examination from June 2024, has not yet been considered for evaluation of an extraschedular disability rating. Accordingly, a remand is warranted to accomplish this additional development. The matters are REMANDED for the following action: 1. Refer the Veteran's claim for an increased rating for his cervical spine disability over the entirety of the appeal period to the Director of the Compensation Service for consideration of whether extraschedular evaluations are warranted. Provide the claims file and a copy of this REMAND to the Director. 2. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, return the appeal to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sutherell, Erienne 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.