Veteranclaims’s Blog

November 19, 2021

Single Judge Application; SMC; Buie v. Shinseki, 24 Vet.App. 242, 250 (2010); In Buie, the Court held that [w]henever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA’s duty to maximize benefits requires VA to assess all of the claimant’s disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to [SMC] under section 1114(s).Id.;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2017
BRIDGETT L. WILSON-PATRICK, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Senior Judge: The appellant, Bridgett L. Wilson-Patrick, appeals through counsel a November 22, 2019, Board of Veterans’ Appeals (Board) decision that denied entitlement to an evaluation in excess of 70% for an adjustment disorder with mixed anxiety and depressed mood and special monthly compensation (SMC) based on the need for regular aid and attendance (SMC(l)). Record of Proceedings (R.) at 5-14. The Court agrees with the parties that remand is required because the Board failed to address the appellant’s explicitly raised theory of entitlement to SMC pursuant to 38 U.S.C. § 1114(s) (SMC(s)) based on whether she is entitled to total disability based on individual unemployability (TDIU) based solely on her adjustment disorder. The Court also concludes that the issues of entitlement to an increased schedular rating for adjustment disorder and entitlement to SMC(l) based upon the need for aid and attendance are inextricably intertwined with the issue of whether she is entitled to TDIU based solely on her adjustment disorder(s), and the Court will therefore remand these matters as well.
1 Judge Schoelen is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 04-21 (Jan. 4, 2021).
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I. BACKGROUND
The appellant served honorably on active duty in the U.S. Air Force from December 2000 to November 2003. R. at 1802. In October 2003, she was diagnosed with adjustment disorder with mixed disturbances of emotion and conduct. R. at 1806. Shortly after service, in February 2004, she filed a claim for service connection for a mental disorder. R. at 3700-09. In April 2010, the Board remanded her claim for additional development. See R. at 2806-10. The record before this Court does not indicate the cause for the significant delay between the filing of the appellant’s initial claims and the Board’s remand for additional development. See Appellant’s Brief (Br.) at 2 (noting a lengthy procedural history).
In April 2011, a VA examiner diagnosed the appellant with adjustment disorder with mixed anxiety and depressed mood. R. at 765. In December 2011, a VA regional office (RO) granted the appellant service connection for an adjustment disorder and assigned staged ratings: a 30% rating effective from July 21, 2009; and a 50% rating effective from April 22, 2011. R. at 2663-68. The RO also increased her rating for her service-connected lumbar spine disability from 10% to 20%. Id. at 2665-66. In November 2012, determining that the issue of TDIU was reasonably raised by the record, the Board remanded the lumbar spine disability claim for additional development. R. at 2470-86.
At a July 2015 VA examination for mental disorders, the appellant reported that she had been unemployed since 2008. R. at 1427. In October 2015, VA increased the appellant’s adjustment disorder rating from 50% to 70%, effective from July 2015. R. at 1261-63. In a separate notice, VA denied entitlement to TDIU.2 The appellant disagreed with VA’s denial of TDIU. R. at 1250 (“This letter is in response to the decision made in my case for unemployability.”).
In October 2016, the appellant filed a claim for an increased rating for her adjustment disorder and an initial claim for SMC benefits. R. at 978-82. She also sought increased ratings for her service-connected lumbar spine and radiculopathy, right lower extremity disabilities. R. at 982. Finally, she sought entitlement to service connection for sleep disturbances, a right hip condition, and migraines secondary to her service-connected lumbar spine disability. Id. In support of her claims, she provided lay statements from her husband and mother. R. at 969-71.
2 The October 2015 Supplemental Statement of the Case (SSOC) that denied TDIU is not part of the Record Before the Agency (RBA) under review by this Court and is incorporated by reference herein. See R. at 544 (“A[n] SSOC was issued in October 2015 adjudicating the [TDIU] claim on appeal.”).
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The appellant was reexamined by VA in December 2016. R. at 936-39. The examiner noted that she was released from a job as a customer service technician in September 2016. Id. at 937. In February 2017, VA denied entitlement to SMC based on aid and attendance and denied a disability rating in excess of 70% for her service-connected adjustment disorder. R. at 673-77. The Secretary asserts that the appellant did not appeal this decision. Secretary’s Br. at 3.
In November 2017, the Board granted TDIU effective from July 27, 2015, the date of the appellant’s VA mental disorders examination. R. at 543-50. The Board’s decision only addressed the issue of entitlement to TDIU and noted that this was the issue on appeal based on the October 2015 SSOC. R. at 544. Also, in November 2017, VA effectuated the grant of TDIU. R. at 530-36. The appellant did not appeal these November 2017 decisions.
In June 2018, the appellant filed new claims for SMC(l) based on the need for aid and attendance and for an increased rating for service-connected adjustment disorder. R. at 244-52. Her spouse provided a lay statement that described symptomatology associated with her adjustment disorder and raised the issue of whether she was entitled to TDIU as a result of her adjustment disorder alone and SMC based on aid and attendance. R. at 245-46. In June 2018, the appellant was reexamined to assess her adjustment disorder. R. at 195-98. In August 2018, VA denied entitlement to a disability rating greater than 70% for adjustment disorder3 and denied entitlement to SMC(l) based on aid and attendance. R. at 132-49. In November 2018, the appellant filed a Notice of Disagreement (NOD), opted into the Rapid Appeals Modernization Program (RAMP) under the Veterans Appeals Improvement and Modernization Act (AMA), and opted for higher level review at the RO. R. at 96-100, 128-29. The resulting February 2019 rating decision continued to deny a higher rating for adjustment disorder and entitlement to SMC(l) based on aid and attendance. Id.
In the decision on appeal, the Board found no evidence to support a rating greater than 70% for the appellant’s adjustment disorder. R. at 5-14. The Board reasoned that although the evidence established that the appellant has significant functional impairments due to her adjustment disorder, the impairments did not equate to total occupational and social impairment. Id. at 10-11. The Board also denied entitlement to SMC based on aid and attendance, finding the appellant able
3 The decision recharacterized her service-connected adjustment disorder as “Evaluation of adjustment disorder with mixed anxiety and depressed mood (now claimed as sleep disturbances secondary to back condition.” See R. at 138.
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to attend to most of her daily needs and noting that there is no evidence of record of her being bedridden. Id. at 13. The Board reasoned that her current TDIU rating adequately reflects the severity of her impairments and that her need for assistance is not of the type contemplated under VA regulations for SMC. Id. This appeal followed.
II. ANALYSIS
The Board, in the decision on appeal, noted that the appellant was awarded TDIU, effective July 27, 2015, because her multiple service-connected disabilities, including her adjustment disorder disability, rendered her unable to secure or follow substantially gainful employment. R. at 15; see R. at 543-50, 530-33. Here, the appellant argues that the Board erred by failing to address, under its duty to maximize benefits, the reasonably raised matter of entitlement to TDIU based solely on her adjustment disorder disability. Appellant’s Br. at 21-24. She also contends that the Board provided inadequate reasons or bases for denying a 100% schedular disability rating for her adjustment disorder because the Board failed to address favorable and material evidence. Id. at 11-21. She further requests that the Court find that the issue of entitlement to SMC under 38 U.S.C. § 1114(s) is inextricably intertwined with the issues of entitlement to a 100% schedular disability rating for her adjustment disorder and entitlement to TDIU. Id. at 24. Finally, she argues that the Board failed to provide an adequate statement of reasons or bases when it denied entitlement to SMC(l) due to need for aid and attendance under 38 C.F.R. §3.352(a). Id. at 24-29.
The Secretary concedes that remand is warranted to address the appellant’s explicitly raised argument, submitted in her June 2018 lay statement, for entitlement to SMC under § 1114(s) based on entitlement to TDIU due solely to her adjustment order. Secretary’s Br. at 9; see R. at 245-46. Yet the Secretary argues that the Board provided an adequate statement of reasons or bases for finding that the appellant is not entitled to an increased rating in excess of 70% for an adjustment disorder. Id. at 9-21. The Secretary further argues that the Board provided an adequate statement of reasons or bases for finding that the appellant is not entitled to SMC(l). Id. at 22-26.
The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Peake, 21 Vet.App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Court has jurisdiction to review whether the Board erred in failing to consider such theories, Barringer v. Peake, 22 Vet.App. 242, 244 (2008), and the Court reviews the Board’s factual findings, such
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as whether a claim has been reasonably raised, under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Robinson, 21 Vet.App. at 553.
SMC is a benefit paid in addition to basic rates of disability compensation and is available to veterans whose service-connected disability results in “additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet.App. 64, 68 (2011). The rate of SMC is set forth in 38 U.S.C. § 1114 and “varies according to the nature of the veteran’s service-connected disabilities.” Moreira v. Principi, 3 Vet.App. 522, 524 (1992). Under 38 U.S.C. § 1114(l), a veteran with a service-connected disability may receive SMC when the disability renders the veteran in need of regular aid and attendance. See 38 C.F.R. § 3.350(b) (2021). Under 38 U.S.C. § 1114(s), claimants who receive a grant of TDIU based on a single disability may be eligible for SMC. See Bradley v. Peake, 22 Vet.App. 280, 293-94 (2008) (holding that a grant of TDIU based on a single disability constitutes a totally rated service-connected disability for purposes of § 1114(s)). Where a veteran’s TDIU is based on a combination of service-connected disabilities, and where SMC(s) (the housebound rate) is explicitly or reasonably raised by the record, VA must consider whether any of the veteran’s individual disabilities alone would render the veteran unemployable for SMC housebound benefits. Buie v. Shinseki, 24 Vet.App. 242, 250 (2010). In Buie, the Court held that
[w]henever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA’s duty to maximize benefits requires VA to assess all of the claimant’s disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to [SMC] under section 1114(s).
Id.

In the decision on appeal, the Board noted that the appellant was awarded TDIU because of her multiple service-connected disabilities that impacted her ability to perform physical labor, and because based on her experience and education, she would not be able to obtain a sedentary job that would allow for special accommodations required by her disabilities. R. at 12. However, the Court agrees with the parties that the Board erred by failing to also consider the appellant’s explicitly raised theory of entitlement to SMC under section 1114(s) based on whether she was awarded (or is entitled to) TDIU based solely on her adjustment disorder. See Secretary’s Br. at 8-9; see also Appellant’s Reply Br. at 1-2; Robinson, 21 Vet.App. at 555.
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In the June 2018 lay statement, the appellant asserts that she is “qualified for SMC based on her increase to TDIU [Permanent and Total] that was granted with an effective date of July 27, 2015.” R. at 244. To support this argument, the appellant notes that it is possible to obtain entitlement to TDIU based upon one disability alone. R. at 245-46. She further asserts that, based on her SOC, none of her other service-connected disabilities were included in the RO decision granting TDIU. Id. Furthermore, she argues that she is entitled to SMC based on having one disability rated as 100% disabling and additional disability or disabilities independently rated as at least 60% disabling. Id. at 246.
In denying entitlement to an increased disability rating for the appellant’s service-connected adjustment disorder, the Board addressed the June 2018 lay statement. R. at 5-6. But for the purpose of weighing the credibility of the appellant’s lay statements to VA examiners, the Board limited its discussion to the portion of the statement describing the appellant’s functional impairments associated with her adjustment disorder. See R. at 5-6.
As in Buie, the Court thus finds that remand is required for the Board to address in the first instance the arguments the appellant explicitly raised in her June 2018 lay statement regarding the theory of entitlement to SMC(s) based on whether she is entitled to TDIU for her adjustment disorder alone (or whether her current TDIU award is already based on her adjustment disorder alone). See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”); Maggitt v. West, 202 F.3d 1370, 1376-77 (Fed. Cir. 2000) (holding that this Court has discretion to either address or remand arguments presented to it in the first instance). Therefore, the Court will vacate the Board decision and remand the matter for the Board to address her theory of entitlement to SMC(s).
Finally, because the Court is remanding the case for the Board to address, for the first time, the appellant’s explicitly raised theory of entitlement to TDIU based on her adjustment disorder alone and thus entitlement to SMC at the (s) rate, the Court will also remand the remaining issues before this Court as inextricably intertwined with the TDIU issue. Claims are intertwined when they “are so closely connected that it is necessary that they be adjudicated together.” Roebuck v. Nicholson, 20 Vet.App. 307, 313 (2006). When a decision on one claim or issue would have a “significant impact” on another that could render review by this Court of the other matter “meaningless and a waste of judicial resources,” the two claims are said to be “inextricably intertwined.” El-Amin v. Shinseki, 26 Vet.App. 136, 141 (2013); see also Smith v. Gober, 236 F.3d
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1370, 1372 (Fed. Cir. 2001) (explaining when “the underlying facts of the two claims are so intimately connected,” “in the interests of judicial economy and avoidance of piecemeal litigation, they should be appealed together”). And where a claim or issue on appeal is inextricably intertwined with another pending before the Agency,
the Court generally will decline, for reasons of judicial economy or on prudential grounds, to review the merits of the claim or issue adjudicated in the Board decision then before the Court, and remand it for further adjudication, as appropriate, with the other ‘inextricably intertwined’ matters still being adjudicated below.
Tyrues v. Shinseki, 23 Vet.App. 166, 178-79 (2009) (en banc), as modified by 26 Vet.App. 31 (2012) (en banc). When issues become inextricably intertwined, the Court should remand them together. Moody v. Wilkie, 30 Vet. App. 329, 343 (2018) (en banc) (Pietsch, J., concurring).
Here, the Court concludes that the issues of entitlement to an increased schedular rating greater than 70% for adjustment disorder and entitlement to SMC(l) based on the need for aid and attendance are inextricably intertwined with the matter of whether the appellant is entitled to TDIU solely for her adjustment disorder disability under 38 U.S.C. § 1114(s). These issues are intimately connected because their underlying facts are derived from the same lay statements, VA examinations, and medical treatment records. See Smith, 236 F.3d at 1372. These issues also significantly affect each other because it is clear that the Board has failed in its duty to maximize benefits by not considering whether there is entitlement to SMC at the (s) rate based on the presumption that a veteran is seeking the maximum benefit allowed under the law. Morgan v. Wilkie, 31 Vet.App. 162, 167 (2019). When, on remand, the Board considers the duty to maximize benefits, it will necessarily need to engage in factfinding that may affect the appellant’s entitlement to an increased schedular rating for her adjustment disorder or entitlement to SMC at the (l) rate. See El-Amin, 26 Vet.App. at 139; Roebuck, 20 Vet.App. at 317; Tyrues, 23 Vet.App. at 166. The Court must also remand the remaining issues because the Board may find the need to order additional development before rendering a final decision when it addresses, in the first instance, whether the appellant is entitled to TDIU based solely on her adjustment disorder. See id.
Given the disposition described above, the Court will not at this time address the remaining arguments the appellant has raised. See Best v. Principi, 15 Vet.App. 18, 20 (2001). On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in her brief to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73
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(1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court, and the parties’ pleadings, the November 22, 2019, Board decision is VACATED and the matters are REMANDED for further proceedings consistent with this decision.
DATED: November 10, 2021
Copies to:
Amy S. Borgersen, Esq.
VA General Counsel (027)

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