Citation Nr: A25056590 Decision Date: 07/01/25 Archive Date: 07/01/25 DOCKET NO. 220428-239790 DATE: July 1, 2025 ORDER Entitlement to special monthly compensation (SMC) at the housebound rate is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for hypertension, to include a separate compensable rating for headaches, is remanded. FINDING OF FACT The Veteran's ischemic heart disease (IHD) alone warrants TDIU and he has additional service-connected disabilities rated at least 60 percent that are separate and distinct. CONCLUSION OF LAW The criteria for SMC based on one service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more (housebound rate) have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to September 1972 and June 1979 to June 1988. The rating decision on appeal was issued in May 2021. The Veteran timely appealed to the Board of Veterans' Appeals (Board) and requested a Board hearing. See April 2022 VA Form 10182. The Veteran waived his right to attend a Board hearing. See June 2023 correspondence. The Veteran appealed the September 2023 Board decision to the Court of Appeals for Veterans Claims (Court). In February 2025, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded these issues to the Board for further proceedings consistent with the JMPR. The case has returned to the Board for further appellate proceedings. The Veteran withdrew his Board hearing request. See February 2025 correspondence. The Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. If the Veteran would like the Department of Veterans Affairs (VA) to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The JMPR specifically remanded the issue regarding a total disability rating based on individual unemployability (TDIU) for the Board to consider whether TDIU may be awarded based on one service-connected disability alone, being the Veteran's heart condition, which would allow for an additional award of SMC. The Veteran specifically claimed entitlement to TDIU based solely on his heart condition. See April 2019 VA Form 21-8940. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. 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 v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent disabling and, in addition: (1) has a 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). The Veteran worked as a welding instructor until 2013 and has two years of college education. Id. The May 2019 examination report noted the Veteran is able to only do light work. A private heart examination received in July 2019 indicated the Veteran is unable to perform regular work activities. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran has only worked as a welding instructor. The job, even if as an instructor, is categorized as a construction physical labor job. This would entail moving heavy welding equipment, long periods standing and walking around, having to both talk while lifting/utilizing heavy/dangerous objects, and being in hot and fast paced environments. However, the medical evidence notes that the Veteran is unable to do such manual physical labor due to his heart condition and generally cannot do such work activities. The Veteran does not have training, education, or experience to work in another type of purely administrative role. The Board finds the Veteran credible as to his functional limitations attributable to his service-connected IHD alone. This satisfies a single disability rated as total as required for SMC purposes. The Veteran's various other service-connected disabilities combine to over 60 percent during the entire period on appeal. Therefore, the Veteran is entitled to SMC at the housebound rate for the entire period on appeal in which TDIU is granted. See 38 U.S.C. § 1114(s). REASONS FOR REMAND The JMPR specifically remanded the issue of an increased rating for hypertension to discuss the secondary condition of headaches. This is based on a private examination received in August 2019 indicating the Veteran's blood pressure contributes to fatigue and headaches. Here, the Board finds that an examination and opinion should have been obtained prior to the rating decision on appeal to determine whether the Veteran's headaches are secondary to his service-connected hypertension and the current severity to determine whether a separate compensable rating is warranted. The failure to obtain this examination and opinion is a pre-decisional duty to assist error. The Board is unable to properly determine whether the Veteran's headaches are caused or aggravated by his service-connected hypertension, and even if so, the severity to potentially award a separate compensable rating. As such, the Board remands this issue for further development. The matter is REMANDED for the following action: Schedule the Veteran for an examination to determine the current severity of his service-connected hypertension, to include an examination regarding the Veteran's headaches. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiries: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's headaches are CAUSED by his service-connected hypertension, to include any medication taken for hypertension? Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's headaches are AGGRAVATED by his service-connected hypertension, to include any medication taken for hypertension? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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 in providing an answer to that particular question(s). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zheng, Andrew 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.