Well today they put in there brief an my lawyer got 7 days to respond than it back with the judge.
Ok here is the biggest issues to me.
First I apply for mental health 2003 the VA has once again left my claim pending in appeal status.
Ok so I apply for mental health with service records 2018. Granted 70% on appeal.
They VA is refusing to address any issues with the effective date. Smh.
Guess I will be do the cue if the judge allow this.
Ok effective dates for smc benfits.
They keep trying to play the informal claim game.
Smc should have been inferred they never address anything on this level.
Last they refuse to granted smc l for the mental health even tho the evidence suggest it. SMH
Last the big thing smc housebound by fact.
They keep trying to not address it.
Now it's basically we don't understand what he is talk about lol.
Than if you look they are saying that my evidence point to 2014 for smc benfits.
But the examiner didn't address that time period.
The rater is to address the time period this shit is crazy.
I will be calling my lawyer today I am not about to play the comp exam game again this really starting to piss me off.
But my fight is just started.
Because they understand my claim remaining pending in appeal status from 2003.
It was granted on appeal 2018.
Effective date is 2003.
This is how I won 8 year retro tdiu.
So if they play the smc s also go back to than.
It over they just want to keep playing with me but it's ok it will get address.
So this made my day
IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
DENIS MCDONOUGH,
Secretary of Veterans Affairs, Appellee.
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS
BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS
TABLE OF CONTENTS
CITATIONS TO THE RECORD BEFORE THE AGENCY ................................... iii
I. ISSUES PRESENTED ..................................................................................... 1
II. STATEMENT OF THE CASE 2
A. JURISDICTIONAL STATEMENT 2
B. NATURE OF THE CASE 2
C. STATEMENT OF RELEVANT FACTS 2
III. SUMMARY OF THE ARGUMENT 7
IV. ARGUMENT 8
A. THE BOARD PROVIDED AN ADEQUATE STATEMENT OF REASONS OR BASES FOR ITS DENIAL OF ENTITLEMENT TO AN INITIAL DISABILITY RATING IN EXCESS OF 70% FOR SERVICECONNECTED ADJUSTMENT DISORDER WITH DEPRESSED MOOD IN ITS NOVEMBER 22, 2021, DECISION 8
B. THE BOARD WAS NOT REQUIRED TO ADDRESS THE EFFECTIVE DATE OF APPELLANT’S ADJUSTMENT DISORDER CLAIM 16
C. THE BOARD PROVIDED AN ADEQUATE STATEMENT OF REASONS OR BASES WHEN DENYING AN EFFECTIVE DATE EARLIER THAN MAY 9, 2018, FOR SMC BASED ON HOUSEBOUND STATUS UNDER 38 U.S.C. § 1114(S) IN ITS NOVEMBER 23, 2021, DECISION 17
D. THE BOARD PROVIDED AN INADEQUATE STATEMENT OF REASONS OR BASES WHEN DENYING AN EFFECTIVE DATE EARLIER THAN JUNE 11, 2018, FOR SMC FOR A&A UNDER 38 U.S.C. § 1114(L) IN ITS NOVEMBER 23, 2021, DECISION 19
E. THE BOARD PROVIDED AN INADEQUATE STATEMENT OF REASONS OR BASES IN DENYING ENTITLEMENT TO A HIGHER LEVEL OF SMC IN ITS FEBRUARY 14, 2022, DECISION 22
F. APPELLANT FAILS TO ESTABLISH THAT THE BOARD RELIED ON AN INVALID REGULATION 24
V. CONCLUSION 32
CITATIONS TO THE RECORD BEFORE THE AGENCY
R. at 3-10 (February 14, 2022, Board Decision) ……………………............ passim
R. at 42-49 (November 23, 2021, Board Decision) ...................................... passim
R. at 54-61 (November 22, 2021, Board Decision) ...................................... passim
R. at 71-72 (November 2021 Purported Withdrawal) ...................................... 6, 22 R. at 73-79 (November 2021 Supplemental Statement of the Case) .....................5
R. at 87 (November 12, 2021, Report of General Information) ....................... 6, 23 R. at 96 (November 10, 2021, Report of General Information) ........................... 23 R. at 685 (July 2021 VA Form 10182) .............................................................. ....6 R. at 719-22 (June 2021 Board Decision) ..............................................................6
R. at 745-49 (May 2021 Decision Review Officer Decision) ........................... 5, 18 R. at 750-51 (May 2021 Appeal to the Board) .......................................................6
R. at 758-68 (May 2021 Supplemental Statement of the Case) ............................5 R. at 775-91 (May 2021 Statement of the Case) ...................................................5 R. at 905-09 (May 2021 Board Decision) ...............................................................5 R. at 963-70 (January 2021 Memorandum Decision) ..................................... 5, 16 R. at 1244-49 (July 2019 VA Psychiatric Examination) ................................. 13, 14 R. at 1290-96 (April 2019 Appeal to the Board) .....................................................4 R. at 1338-75 (April 2019 Statement of the Case) .................................................4
R. at 1390-92 (April 2019 Rehabilitation Plan) .................................................... 24 R. at 1431-37 (August 2018 Notice of Disagreement) .................................... 4, 16 R. at 1485-89 (July 2018 Rating Decision) ............................................................4 R. at 1491 (July 2018 Paraprofessional Care Plan) ............................................ 24
R. at 1513-15 (June 2018 VA Aid and Attendance or Housebound Examination)
............................................................................................................................. 20
R. at 1568-79 (July 2018 Rating Decision) ............................................................4 R. at 2203-06 (May 2018 Claim) ..................................................................... 4, 18 R. at 2348-52 (September 2015 VR&E Special Review) .............................. 19, 21 R. at 2388-93 (January 2015 Independent Living Plan) ...................................... 20 R. at 2478-79 (September 2014 VA Social Work Note) ...................................... 20
R. at 2773-84 (April 2012 Board Decision) ............................................................4 R. at 3179-80 (June 2010 Rating Decision) ...........................................................4 R. at 3270 (April 2010 Notice of Disagreement) ....................................................4 R. at 3274-80 (January 2010 Notice Letter) ...........................................................4 R. at 3290-93 (January 2010 Rating Decision) ......................................................4 R. at 3345-68 (December 2009 Board Decision) ...................................................4 R. at 3380-95 (November 2009 Supplemental Statement of the Case).................3
R. at 3483-89 (July 2009 Board Decision) .............................................................3 R. at 4175-94 (September 2003 Statement of the Case) .......................................3 R. at 4483 (August 2002 Notice of Disagreement) ................................................3 R. at 4490 (June 2002 Notice Letter) .....................................................................3 R. at 4492-95 (June 2002 Rating Decision) ...........................................................3
R. at 4590 (November 2001 Psychiatric Claim) .....................................................3 R. at 4597 (August 2001 TDIU Claim) ...................................................................3 R. at 5083-84 (July 1994 Notice Letter) .................................................................3 R. at 5086-89 (June 1994 Rating Decision) ...........................................................3
R. at 5167-70 (January 1994 Claim) ......................................................................2 R. at 5177 (DD214) ................................................................................................2
IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
) )
)
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS
BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS
I. ISSUES PRESENTED1
A. Whether the Court should affirm the November 22, 2021, decision of the Board of Veterans’ Appeals (Board) denying entitlement to an initial disability rating in excess of 70% for service-connected adjustment disorder with depressed mood.
B. Whether the Court should affirm that portion of the November 23, 2021, Board decision that denied entitlement to an effective date prior to May 9, 2018, for the award of special monthly compensation (SMC) based on housebound criteria, and
1 This matter involves three Board decisions that have been consolidated into a single appeal by the Court: 1) a February 14, 2022, decision that denied entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m), (n), (o), (p), and (r); 2) a November 23, 2021, decision that denied an increased rating and an earlier effective date (EED) for an adjustment disorder; and 3) a November 22, 2021, decision that denied an EED for SMC at the A&A and housebound rates. remand that portion of that Board decision denying entitlement to an effective date prior to June 11, 2018, for the award of SMC based on aid and attendance (A&A).
C. Whether the Court should remand that portion the February 14,
2022, Board decision to the extent that it denied entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m),
(n), (o), (p), and (r).
II. STATEMENT OF THE CASE
A. JURISDICTIONAL STATEMENT
The Court has exclusive jurisdiction to review final decisions of the Board under 38 U.S.C. § 7252(a).
B. NATURE OF THE CASE
, appeals three consolidated Board decisions: 1) a February 14, 2022, decision that denied entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m), (n), (o), (p), and (r); a November 23, 2021, decision that denied an increased rating and an EED for an adjustment disorder; and 3) a November 22, 2021, decision that denied an EED for SMC at the A&A and housebound rates. See generally [Appellant’s Brief (App. Br.)].
C. STATEMENT OF RELEVANT FACTS
5177]. In January 1994, Appellant filed a claim seeking entitlement to service connection for a neck and elbow injury. [R. at 5167
(5167-70)]. The Regional Office (RO) issued a rating decision in June 1994, granting service connection for residuals of neck strain and denying service connection for a left elbow and hand disability. [R. at 5086 (5083-84, 5086-89)].
In November 2001, Appellant filed a claim seeking entitlement to service connection for a mood disorder and a total disability rating based on individual unemployability (TDIU). [R. at 4590, 4597]. The RO denied the claims in a June 2002 rating decision, [R. at 4490; 4492-95], and Appellant filed a timely notice of disagreement (NOD). [R. at 4483]. The RO issued a Statement of the Case (SOC) in September 2003 maintaining the denial of entitlement to TDIU and service connection for depressive mood disorder. [R. at 4191-93 (4175-94)].
In July 2009, the Board issued a decision finding that Appellant had timely filed a substantive appeal in January 1995, within one year of the June 1994 rating decision; thus, the issues of service connection for his left elbow disability and initial evaluation of his left neck muscle strain were on appeal. [R. at 3485 (348389)]. The Board remanded those issues for additional development. Id. at 3487-
89.
The RO issued a Supplemental SOC (SSOC) in November 2009, denying entitlement to service connection for residuals of a left elbow fracture with parasthesias and a disability rating in excess of 10% for muscle strain of his left neck. [R. a 3393 (3380-95)]. The Board issued a December 2009 decision
granting service connection for a left elbow disability and an initial disability rating of 20%, for Appellant’s cervical spine disability, for the period from December 14, 1993, to August 15, 2001: and remanding the issue of TDIU. [R. at 3363 (334568)]. The RO issued two rating decisions implementing the Board decision. [R. at
3179-80; 3274-80; 3290-93]. The January 2010 rating decision also assigned a 60% rating, effective August 16, 2001, [R. at 3274-80; 3290-93], to which Appellant filed a timely NOD with the effective date. [R. at 3270].
In an April 2012 decision, the Board granted entitlement to TDIU, effective December 14, 1993. [R. at 2773-84]. Appellant sought entitlement to SMC benefits and service connection for a psychiatric disorder in a May 2018 claim. [R. at 2204 (2203-06)]. In July 2018, the RO issued a rating decision granting service connection for adjustment disorder with depressed mood, evaluated as 70% disabling, effective May 9, 2018, continuing Appellant’s 60% rating for cervical spondylosis, and deferring entitlement to SMC “based on loss of use”. [R. at 157678 (1568-79)]. The RO issued another rating decision later that month, denying entitlement to SMC based on A&A, housebound, and loss of use. [R. at 1487-89
(1485-89)]. Appellant timely filed a NOD, [R. at 1431-37], and the RO issued an April 2019 SOC maintaining the prior determinations. [R. at 1372 (1338-75)].
Appellant filed a timely appeal. [R. at 1290-96].
In January 2020, the Board issued a decision in which it granted entitlement to SMC by reason of being housebound, under 38 U.S.C. § 1114(s), from May 9 to July 17, 2018, and entitlement to SMC based on the need for regular A&A of another person, under 38 U.S.C. § 1114(l), from July 17, 2018. [R at 988-96]. The Board also dismissed Appellant’s increased rating claims for his neck and left elbow conditions and declined, due to a finding of a lack of jurisdiction, to entertain a claim for increased rating of his service-connected psychiatric disorder. Id. at 990-91.
A January 2021 Memorandum Decision reversed the Board’s finding that Appellant’s October 2018 NOD did not encompass that portion of a July 2018, rating decision granting a 70% evaluation, but no higher, for a psychiatric disorder. [R. at 963, 968 (963-70)]. The Court also determined that the Board failed to address entitlement to SMC at higher (o) and (r) levels and remanded for consideration of such. Id. at 967.
Following this decision, the Board remanded the issue of entitlement to a higher SMC rate, instructed the RO to assign effective dates for SMC housebound and SMC based on the need for A&A in the first instance, and directed the RO to issue a SOC regarding entitlement to a rating in excess of 70% for his adjustment disorder with depressed mood. [R. at 907-09 (905-09)]. In May 2021, the RO issued a decision review officer decision granting entitlement to SMC based on housebound criteria from May 9, 2018, to July 16, 2018, and SMC based on A&A from July 17, 2018. [R. at 745-49]. The RO also issued a SOC denying entitlement to a disability rating in excess of 70% for adjustment disorder with depressed mood, [R. at 775-91], and a SSOC denying entitlement to SMC at a rate greater than A&A and housebound. [R. at 763-67 (758-68)]; see also [R. at 77-79 (73-79)
(November 2021 SSOC denying entitlement to SMC at the O and R rates)].
Appellant filed a timely appeal as to his assigned adjustment disorder rating, [R. at 750-51], and a timely VA Form 10182 on the issue of the effective date assigned for housebound and A&A SMC electing the direct review option. [R. at 685].
The Board remanded the issue of entitlement to a higher level of SMC in a June 2021 decision for an examination and an opinion as to whether Appellant has the functional equivalent of loss of use of his left hand and/or arm. [R. at 719-22]. Attempts to obtain an examination pursuant to the Board’s remand order were futile and Appellant made it clear that he did not desire to attend another examination. [R. at 87]. In November 2021, Appellant submitted a statement that he was withdrawing “the remand [from] June 29, 2021, for loss of use” but is not withdrawing his claim for SMC at the (o) and (r) rates. [R. at 71 (71-72)].
In its November 22, 2021, decision, the Board found that throughout the period on appeal, Appellant’s adjustment disorder symptomology has been productive of, at most, occupational and social impairment with deficiencies in most areas during the entire appeal period as such a rating in excess of 70% is not warranted at any time. [R. at 61 (54-61)].
The following day, November 23, 2021, the Board issued another decision denying entitlement to an effective date prior to May 9, 2018, for the award of SMC based on housebound criteria. [R. at 48 (42-49)]. The Board also granted an effective date of June 11, 2018, for the award of SMC based on A&A. Id. at 49.
On February 14, 2022, the Board issued a third decision granting entitlement to an increased level of SMC under 38 U.S.C. § 1114(p) and denying entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m), (n), (o), (p), and (r). [R. at 3-10]. The Board, in denying entitlement to a higher level of SMC, declined to address Appellant’s loss of use claim finding that his November 2021 correspondence constituted a withdrawal that became effective once it was
received. Id. at 5.
On May 27, 2022, the Court consolidated all three Board decisions into this case. This appeal followed.
III. SUMMARY OF ARGUMENT
The Board, in its November 22, and 23, 2021, decisions, reasonably concluded, based on the evidence of record, that an earlier effective date was not warranted for SMC at the housebound rate and an increased rating was not warranted for adjustment disorder. Specifically, the Board considered all relevant evidence of record, properly interpreted the applicable legal principles, and adequately explained its findings as required by law. Appellant has not demonstrated that the Board committed prejudicial error that would warrant any action by the Court other than affirmance of these determinations. However, this
Court should vacate the portions of the February 14, 2022, and November 23,
2021, decisions which denied entitlement to a higher level of SMC, including under
38 U.S.C. §§ 1114(m), (n), (o), (p), and (r), and an effective date prior to June 11, 2018, for the award of SMC based on A&A criteria as the Board failed to provide an adequate statement of reasons or bases for these determinations.
IV. ARGUMENT
A. THE BOARD PROVIDED AN ADEQUATE STATEMENT OF REASONS OR BASES FOR ITS DENIAL OF ENTITLEMENT TO AN INITIAL DISABILITY RATING IN EXCESS OF 70% FOR SERVICECONNECTED ADJUSTMENT DISORDER WITH DEPRESSED MOOD IN ITS NOVEMBER 22, 2021, DECISION.
The Board’s November 22, 2021, determination of the proper disability rating is a finding of fact that the Court reviews under the clearly erroneous standard of review. 38 U.S.C. § 7261(a)(4); Buckley v. West, 12 Vet.App. 76, 81 (1998). Under this standard, if the Board’s findings are supported by a plausible basis in the record, they cannot be disturbed even if the Court concludes that it would not have reached the same decision. Gilbert v. Derwinski, 1 Vet. App. 49, 52-53
(1990).
Pursuant to 38 C.F.R. § 4.130, a 70% disability rating is warranted for:
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
38 C.F.R. § 4.130. Finally, a 100% disability rating is warranted for:
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
Id. Because the symptoms enumerated in § 4.130 are not an exhaustive list, the Court has held that VA must consider “all the evidence of record that bears on occupational and social impairment,” and then “assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering.” Mauerhan v. Principi, 16 Vet.App. 436, 440-41 (2002); see Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017) (requiring VA to “engage in a holistic analysis” of the claimant’s symptoms to determine the proper disability rating). Moreover, the Court has held that “a veteran may only qualify for a given disability rating under [38 C.F.R.] § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.”
Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); see 38 C.F.R. § 4.126(a).
A Board decision must be supported by statements of reasons or bases which adequately explains the basis of its material findings and conclusions. 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57. This generally requires the Board to analyze the probative value of the evidence, account for that which it finds persuasive or unpersuasive, and explain the basis of its rejection of evidence materially favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Court reviews the Board’s findings of fact under the clearly erroneous standard. 38 U.S.C. § 7261(a)(4).
Appellant argues that the Board provided inadequate reasons or bases for denying an increased rating for a psychiatric disorder. [App. Br. at 17-21]. He contends that the Board failed to address symptoms of record, [App. Br. at 18-19], consider symptomology not contemplated for a 100% PTSD rating, [App. Br. at 19], adequately address his social impairment, [App. Br. at 19-21], and address the severity, frequency, or duration of his symptoms. [App. Br. at 21]. However, the Board provided adequate reasons or bases for its determination.
When rating a veteran’s psychiatric condition, “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vazquez-Claudio, 713 F.3d at 117. In Vazquez-Claudio, the Federal Circuit ultimately upheld the Board’s determination based on the veteran’s symptomatology, holding that “[a]lthough we acknowledge that the Board might have elaborated in more detail why Mr. Vazquez-Claudio had not suffered impairment in certain of the referenced areas, we cannot say that it failed to make the necessary findings to support its conclusion that Mr. Vazquez-Claudio’s symptoms were not indicative” of the level impairment required by the regulation. 713 F.3d at 118. Similarly, in the instant case, after reviewing the evidence of record regarding Appellant’s symptomatology, [R. at 59-61], the Board found that
Appellant’s “mental disability has been characterized by depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances[,]” but the Board explained that these symptoms did not “more nearly approximate[] total occupational and social impairment.” [R. at 61]. The Board parsed the limitations caused by Appellant’s psychiatric disability from the limitations caused by Appellant’s other disabilities and found that Appellant’s psychiatric disabilities alone did not produce total occupational and social impairment, as would be required for an increased rating. [R. at 60-61]. The Board therefore performed the task required of it: weighing the evidence of record and focusing on Appellant’s symptoms and the degree of occupational and social impairment they produce. See Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (explaining that it is the responsibility of the Board to assess the probative weight of the evidence).
Appellant argues that the Board failed to address several symptoms of record. [App. Br. at 18-19]. However, Appellant does not note any symptoms that would warrant an increased rating or otherwise explain how the symptoms he listed would result in an increased rating. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error). In fact, none of the symptoms listed by Appellant can be found under the criteria for a 100% rating. For example, Appellant contends that the Board did not adequately address symptoms listed under the 30% rating criteria such as his panic attacks that occur weekly or less often and chronic sleep impairment; symptoms listed in the 50% rating criteria including flattened affect, disturbances in motivation and mood, impairment of short and long term memory, difficulty in understanding complex commands, and impaired abstract thinking; and symptoms listed in the 70% rating criteria such as suicidal ideation, obsessional rituals which interfere with routine activities, and near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. 38 C.F.R. § 4.130. None of the symptoms Appellant lists can be found under the criteria for a 100% rating. Id. As this Court has held that the symptoms listed within the rating criteria “are not intended to constitute an exhaustive list, but rather to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating[,]” specifically explaining that the Board should focus on a claimant’s overall social and occupational impairment rather than the specific absence or presence of the listed symptoms, Appellant has entirely failed to support his assertion of error by the Board. See Mauerhan, 16 Vet.App. at 44243; see also Hilkert, 12 Vet.App. at 151. To the extent that the Board did not address these specific symptoms, this is not evidence of inadequate reasons or bases. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding that the Board need not comment upon every piece of evidence contained in the record). Moreover, Appellant appears to simply be disagreeing with how the Board weighed the evidence of record, to include his psychiatric symptoms, and a disagreement with how the Board weighed the evidence is not a valid basis for remand. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (“The Court of Appeals for Veterans Claims, as part of its clear error review, must review the Board’s weighing of the evidence; it may not weigh any evidence itself.”).
Appellant further argues that the Board erred by relying on his ability to manage his financial affairs and leave the house daily for “various activities.” [App. Br. at 19]; [R. at 1249 (1244-49)]. Appellant’s argument is based on a misunderstanding of the Board’s analysis. Notably, neither the criteria for a 70% nor 100% rating require or contemplate financially incompetency or home confinement. 38 C.F.R. § 4.130. However, the Board did not rely on either to deny a higher rating. [R. at 59-60]. Rather, the Board deemed it relevant to highlight these findings while providing additional discussion regarding the 2019 VA examination report and weigh them against other noted symptomology to
determine the appropriate rating. [R. at 59]; [R. at 1249 (1244-49)]; see Delrio v. Wilkie, 32 Vet.App. 232, 243 (2019) (explaining that the Board cannot simply adopt statements of a VA examiner without reconciling the opinion with other evidence of record). This is precisely the analysis the Board was required to conduct under 38 C.F.R. § 4.130.
Appellant also contends that the Board did not adequately explain whether “total” occupational impairment requires complete lack of ability to engage in any work whatsoever or only requires the veteran to show a total inability to earn substantial gainful employment. [App. Br. at 19]; [R. at 60]. This argument conflates the standards for a TDIU rating and an increased psychiatric rating failing to establish error. See Hilkert, 12 Vet.App. at 151. The Board properly considered the fact that there is no indication that Appellant’s adjustment disorder would totally impair his employment despite there being a “severe” impact on his ability to maintain employment. [R. at 60]; [R. at 1249 (1244-49)]. Indeed, controlling rating criteria contemplate the level of occupational impairment a veteran is suffering without regard to an ability to maintain gainful employment. 38 C.F.R. § 4.130; Mauerhan, 16 Vet.App. at 440-41.
Next, Appellant’s argument that the Board failed to adequately address his social impairment is unpersuasive. [App. Br. at 19-21]. As might be inferred from
Appellant’s citation to non-precedential authority for this proposition, [App. Br. at 19-20], there is no reason for the Board to have treated Appellant’s family relationships as categorically different from other social relationships when determining his social impairment. See 38 C.F.R. § 4.126(b) (“When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.”). At any rate, the Board’s discussion regarding Appellant’s family relationships in determining the degree of social impairment appears to stem from the evidence of record largely describing his social interactions as taking place with family members. [R. at 60]; see, e.g., [R. at 1247, 1249 (1244-49)]. Ultimately, the Board reviewed the evidence of record to determine the degree of occupational and social impairment, as it must do in assigning a rating. 38 C.F.R. § 4.130. Notably, Appellant does not provide any explanation regarding the actual prejudicial error that he believes the Board committed, as pertains to his case.
Shinseki, 556 U.S. at 409; Hilkert, 12 Vet.App. at 151. Specifically, while Appellant seems to believe that the Board should have considered something other than his familial relationships when assessing his social impairment, he points to absolutely no evidence that the Board should have otherwise addressed, and only relies on non-precedential cases, which by definition are not binding on his case, to support his theory that the Board should have relied on some other evidence. [App. Br. at 19-21]. As Appellant has not provided any evidence or legal support for his underdeveloped argument, the Secretary cannot fully respond, and the Court should decline to do the same. Chase v. West, 13 Vet.App. 413, 414 (2000) (per curiam order) (holding that an appellant’s contention must fail when he does not cite to authority to support it).
Finally, Appellant argues that the Board failed to specify the severity, frequency, or duration of his symptoms. [App. Br. at 21]. This argument ignores the Board’s entire analysis. After reviewing Appellant’s symptoms and comparing
Appellant’s symptoms to the criteria for 70% and 100% ratings, [R. at 59-61], the Board concluded that “the weight of the medical and lay evidence shows that the severity, frequency, and duration of [Appellant’s] listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70% disability rating.” [R. at 61]. As such, the Board has supported its decision regarding the appropriate disability rating for Appellant’s adjustment disorder claim with thorough reasons or bases regarding the relevant evidence, and Appellant fails to establish otherwise.
Hilkert, 12 Vet.App. at 151; Gilbert, 1 Vet.App. at 52-53 (a finding of fact is not clearly erroneous if there is a plausible basis for it in the record).
B. THE BOARD WAS NOT REQUIRED TO ADDRESS THE EFFECTIVE DATE OF APPELLANT’S ADJUSTMENT DISORDER CLAIM.
Appellant asserts that the Board, in the November 22, 2021, decision, failed to address whether an EED is warranted for his service-connected psychiatric disorder. [App. Br. at 21-22]. Specifically, Appellant argues that his 2018 NOD served to raise the issue of the appropriate effective date for the grant of service connection for his adjustment disorder. Id.; [R. at 1431-37]. This argument must
fail.
This Court, in its January 2021 memorandum decision, held that the August
2018 NOD “clearly indicated his intent to appeal all issues decided in both July 2018 rating decisions, including the evaluation assigned for his psychiatric disorder.” [R. at 968 (963-70)]. The decision reversed the Board’s finding that the
NOD did not encompass that portion of a July 5, 2018, rating decision granting a 70% evaluation for a psychiatric disorder and remanded the issue for further adjudication. Id. Nothing in the memorandum decision, to include the opening statement that clearly articulated that the Court was “revers[ing] the Board’s finding that [Appellant’s August] 2018 NOD did not encompass that portion of a July 5, 2018, rating decision granting a 70% evaluation, but no higher, for a psychiatric disorder[,]” Id. at 912-19) or the NOD, [R. at 1431-37], in any way relates to the issue of obtaining an effective date earlier than the May 2018 date of claim.
Indeed, this is an issue that Appellant raises for the first time in his initial brief, despite this case previously being before the Court once and the Board multiple times. See Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990) (“Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court” because piecemeal litigation hinders the decision making process). Therefore, the Board had no reason to have adjudicated the effective date based on Appellant’s present theory about the legal effect of lay statements submitted in 2003, which has never before been raised. Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (stating that Board is “not required sua sponte to raise and reject ‘all possible’ theories of entitlement in order to render a valid opinion”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
C. THE BOARD PROVIDED AN ADEQUATE STATEMENT OF REASONS OR BASES WHEN DENYING AN EFFECTIVE DATE EARLIER THAN MAY 9, 2018, FOR SMC BASED ON HOUSEBOUND STATUS UNDER 38 U.S.C. § 1114(S) IN ITS NOVEMBER 23, 2021, DECISION.
Appellant argues that the Board in its November 23, 2021, decision provided inadequate reasons or bases as to SMC at the housebound rate. [App. Br. at 2627]. This argument is without merit.
Pursuant to 38 U.S.C. § 1114(s) a veteran is entitled to SMC if his or her service-connected disabilities render the veteran permanently housebound. The requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime. 38 U.S.C. § 1114(s). Generally, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400 (“Except as otherwise provided, the effective date of an evaluation and award of . . . compensation . . . based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later.” (emphasis added)). However, in a claim for an increased rating, the effective date may date back as much as one year before the date of the claim for increase if it is factually “ascertainable that an increase in disability had occurred” within that one-year period. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). It is well established that a Board determination of the proper effective date is a finding of fact that the Court reviews under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4).
Here, the record reflects that, on May 9, 2018, Appellant filed a claim seeking SMC, [R. at 2204 (2203-06)], which serves as the current effective date for SMC at the housebound rate. See [R. at 48]; [R. at 745-49]; [R at 996 (988-96)]. In this regard, the Board found that “the record indicates his eligibility for statutory housebound status arose due to service connection for adjustment disorder being granted from May 9, 2018” and “as of May 9, 2018, the Veteran had one disability rated as totally disabling.” [R. at 48]. Thus, as the Board found, the facts in this case do not support an effective date prior to the May 2018 date of claim. Id.; see 38 C.F.R. § 3.401(a)(1). While Appellant argues that the Board provided inadequate reasons or bases for denying SMC at the housebound rate because it did not define the relevant term of “substantially confined,” [App. Br. at 26-27], the earliest possible effective date for SMC statutory housebound eligibility has been assigned. See Lamb v. Peake, 22 Vet.App. 227, 235 (2008) (holding that there is no prejudicial error when a remand for a decision on the merits would serve no useful purpose). Crucially, Appellant fails to explain how any such definition could result in an EED and the argument should be rejected by the Court. Hilkert, 12 Vet.App. at 151; Brewer v. West, 11 Vet.App. 228, 236-37 (1998) (holding that where appellant offers “mere assertions . . . for which he has not provided any legal support, . . . the Court need not deal further with such a vague argument”).
D. THE BOARD PROVIDED AN INADEQUATE STATEMENT OF REASONS OR BASES WHEN DENYING AN EFFECTIVE DATE EARLIER THAN JUNE 11, 2018, FOR SMC FOR A&A UNDER 38 U.S.C. § 1114(L) IN ITS NOVEMBER 23, 2021, DECISION.
Appellant contends that the November 23, 2021, Board provided inadequate reasons or bases as to the effective date for SMC at the A&A rate. [App. Br. at 2226]. This argument relies on records dated prior to the current June 2018 effective date that suggest that Appellant required A&A earlier in the appeal period. Id.; see also [R. at 2349 (2348-52) (September 2015 Special Administrative Review wherein Appellant indicated that he had difficulties performing activities of daily living (ADLs) to include preparing meals, moving from a sitting to a standing position, walking long distances and driving) ]; [R. at 2390 (2388-93) (January 2015 Counseling Report and Rehabilitation Plan noting that Appellant has difficulty performing ADLs)]; [R. at 2478 (2478-79) (September 2014 Social Work Note indicating that Appellant had difficulty maintaining his home, i.e. cutting grass, trimming/edging, leaf disposal and snow removal)]. The Secretary concedes that the Board failed to address this potentially favorable evidence in considering the appropriate effective date for Appellant’s SMC A&A benefits. The Secretary further concedes, consistent with Appellant’s arguments, that the Board did not address the adequacy of the June 2018 VA examination report, and the fact that this report did not state when Appellant’s limitations in activities of daily living began. [App. Br. at 23]; [R. at 1513-15]. Therefore, the Court should remand this part of the Board’s decision for an adequate statement of reasons or bases regarding the adequacy of the June 2018 examination and for the Board to address the highlighted evidence in determining whether it warrants an earlier effective date for SMC at the A&A rate. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has . . . failed to provide an adequate statement of reasons or bases for its determination.").
However, to the extent that Appellant argues that the Board should have considered whether any of the above-described medical records constituted an informal claim for SMC or an informal claim for an increased rating to include SMC, his argument is without merit. [App. Br. at 24]; see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991). Some of Appellant’s evidence that he argues might have been an informal claim was after March 24, 2015, the last date when VA accepted informal claims for benefits. See, e.g. [R. at 2350 (2348-52)]; see also Bailey v. Wilkie, 33 Vet.App. 188, 198 (2021) (“Prior to March 24, 2015, the effective date of these amendments, VA accepted both formal and informal claims for benefits”). Appellant also fails to explain how the remaining evidence consists of medical records that were submitted as part of a claim for benefits, or otherwise satisfied the criteria as an informal claim. See Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) (“The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for benefits.”). Similarly, he argues that “SMC may be considered part of a claim for increased compensation,” but fails to carry his burden of identifying the claims that
SMC would attach to or explaining how any further consideration of Akles, 1
Vet.App. at 118, would be determinative in this case. See Hilkert, 12 Vet.App. at
151; see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments). Therefore, although remand is warranted for proper consideration of entitlement to an EED for the award of SMC based on A&A criteria, the Court should only remand this case for the reasons conceded by the Secretary. See Mayfield v. Nicholson, 19 Vet.App. 103, 129 (2005) (where judicial review is not hindered by deficiency of reasons or bases, a remand for reasons or bases error would be of no benefit to the appellant and would therefore serve no useful purpose).
E. THE BOARD PROVIDED AN INADEQUATE STATEMENT OF REASONS OR BASES IN DENYING ENTITLEMENT TO A HIGHER LEVEL OF SMC IN ITS FEBRUARY 14, 2022, DECISION.
Appellant contends that the Board, in its February 2022 decision, failed to provide any analysis as to whether his purported withdrawal of his loss of use claim was explicit, unambiguous, and included a statement that the appeal is withdrawn.
[App. Br. at 27-28]. The Secretary agrees.
VA’s regulations provide that an appellant or an appellant's authorized representative may withdraw an appeal, and an appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.205(a). A withdrawal must include (1) the name of the veteran or claimant, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. 38 C.F.R. § 20.205(b)(1). “If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal.” Id. A written withdrawal must be explicit and unambiguous. Hembree v. Wilkie, 33 Vet.App. 1, 5-6 (2020) (the Board may need to consider other evidence to determine whether the purported withdrawal complies with the regulatory requirements). The Court reviews the Board's conclusion that an appellant has withdrawn an appeal or issue therein under the “clearly erroneous” standard of review. Kalman v. Principi, 18 Vet.App. 522, 524 (2004).
Here, Appellant, in November 2021, submitted a statement that he withdraws “the remand [from] June 29, 2021 for loss of use” but does not withdraw his claim for SMC at the (o) and (r) rates. [R. at 71 (71-72)]. A report of general information completed a few days prior to Appellant’s submission indicates that Appellant expressed some concerns about the nature of his SMC claims and sought clarification regarding the status. [R. at 87]; see also [R. at 96]. The Board noted the November 2021 correspondence finding it to be a withdrawal of Appellant’s claim for loss of use that became effective once received by VA. [R. at 5]. However, the Board failed to provide any additional analysis regarding the contents of the purported withdrawal to support its conclusion; thus, the Secretary concedes that remand is required for proper consideration as to whether Appellant withdrew his claim for SMC loss of use. Warren v. McDonald, 28 Vet.App. 214, 218 (2016) (determining whether a veteran's withdrawal of a claim was effective requires the Court to review the totality of the circumstances); Verdun v. Brown, 8 Vet.App. 529, 533 (1996) (requiring the Board to take “into account all of the facts relating to the status of the claim,” as well as the nonadversarial nature of the VA claims process and VA's obligation “to construe liberally all submissions by a claimant”).
Next, the Board found that Appellant to be entitled to SMC at the (l) rate based on his need for regular A&A of another person for his service-connected neck and left elbow disabilities. [R. at 3, 9 (3-10)]. The Board explained that a separate entitlement to SMC under § 1114(l) is not warranted for Appellant’s service-connected psychiatric disability because the evidence does not demonstrate that there is a need for regular A&A due to this disability. Id. at 9. Appellant asserts that the Board erred in making this finding because evidence shows otherwise. [App. Br. at 28-30]. However, this argument is unsupported. While some records related to his A&A may contain psychiatric components, Appellant fails to establish that the basis for such needs result solely from his psychiatric disability. Hilkert, 12 Vet.App. at 151; see also [R. at 1491 (July 2018 paraprofessional plan clearly listing Appellant’s condition as cervical spine and pain)]; [R. at 1390-92 (April 2019 Rehabilitation Plan addressing mainly physical objectives related to Appellant’s ADLs)]. Moreover, because the Secretary has already conceded error regarding the Board’s consideration of entitlement to a higher level of SMC and the purported withdrawal, Appellant has the opportunity to present this argument to the Board upon remand. Best v. Principi, 15 Vet. App. 18, 20 (2001) (noting that the factual and legal context may change following a remand to the Board and explaining that a narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication).
F. APPELLANT FAILS TO ESTABLISH THAT THE BOARD RELIED ON AN INVALID REGULATION.
Appellant asserts that 38 C.F.R. § 3.350(f)(4) is inconsistent with the statutory scheme, 38 U.S.C. § 1114(p), as well as the Secretary’s own regulations. [App. Br. at 30-32]. He argues that Congress did not intend to limit additional compensation for Veterans who did not satisfy the schedular criteria for a 100% rating but nevertheless experience the same disabling effects from their serviceconnected disabilities as veterans rated at a schedular 100%. Id. at 31. The Secretary respectfully disagrees as discussed below and maintains that
§ 3.350(f)(4) is a valid regulation consistent with the statutory intent.
Under 38 U.S.C. § 1114(p), in pertinent part, “in the event the veteran’s service-connected disabilities exceed the requirements for any of the rates prescribed in this section, the Secretary may allow the next higher rate or an intermediate rate …” 38 U.S.C. § 1114(p).
The implementing VA regulation, 38 C.F.R. § 3.350(f)(4), provides for
“[a]dditional independent 100 percent ratings” explaining that:
“[i]n addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100[%] apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o)…”
38 C.F.R. § 3.350(f)(4).
Interpreting the plain meaning of a regulation requires the Court to “bring all its interpretative tools to bear” and to “make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.” Kisor v. Wilkie, 139 S. Ct. 2400, 2423-24 (2019). A regulation may be genuinely ambiguous if it does not directly address an issue, or if it is capable of more than one reasonable reading when applied to similar fact patterns. Id. at 2410. A regulation, however, is not ambiguous merely because both parties reasonably interpret that the plain meaning of a regulation supports his or her position. Id. at 2423. (“And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.”). It is well settled that when determining a statute or regulation’s plain meaning, the specific language at issue and the overall structure of the statute or regulation must be examined. Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) (citing Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 403-05, 108 S. Ct. 1255, 99 L. Ed. 2d 460 (1988)), aff'd sub nom.
Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 7 115, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994). “Where a statute’s language is plain, and its meaning clear, no room exists for construction. There is nothing to construe.” Id. at 587- 88. “In the absence of an express definition, words are given their ordinary meaning.” Prokarym v. McDonald, 27 Vet.App. 307, 310 (2015) (citing Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003)). “If the plain meaning is clear from its text and structure, then that meaning controls and that is the end of the matter.” Atencio v. O’Rourke, 30 Vet.App. 74, 82 (2018). When assessing the meaning of a regulation, words should not be read in isolation but rather in the context of the regulatory structure and scheme. Id.
38 C.F.R. § 3.350(f) implements 38 U.S.C. § 1114(p). See Barry v. McDonough, 35 Vet.App. 111, 122 (2022). The Court recently addressed a challenge to the validity of 38 C.F.R. § 3.350(f) in Barry and explained in its analysis that, in 38 U.S.C. § 1114(p), Congress provides that the Secretary may allow the next higher rate or an intermediate rate. Id. at 122. Further, the use of the terms “the” and “an” in conjunction with the singular term “rate” in the authorizing statute indicates that one singular rate will be provided through any regulation the Secretary adopted to implement the statute. Id.
Contrary to Appellant’s argument, and consistent with the Court’s analysis in Barry, 38 C.F.R. § 3.350(f)(4) does not impose restrictions on entitlement, rather, the regulation sets forth regulatory guidelines that a veteran must follow to receive the next higher rate authorized by 38 U.S.C. § 1114. [App. Br. at 30-32]. The plain language of 38 C.F.R. § 3.350(f)(4) does not support Appellant’s interpretation which presumes, without supporting authority, that veterans who do not satisfy the schedular criteria for a 100% rating nevertheless experience the same disabling effects from their service-connected disabilities as veterans who do. [App. Br. at 31]. Nor does it support Appellant’s request to strike § 3.350(f)(4) to the extent it excludes TDIU as a basis on which to grant increased SMC. [App. Br. at 31-32].
Indeed, the Barry Court explained that VA’s implementation of the regulation, 38 C.F.R. § 3.350(a), recognizes the plurality of the statute and the varying approaches through its implementing regulations is a faithful application of the choices Congress made. Barry, 35 Vet.App. at 122-123. Section 1114(p) is significant because it is what provides VA with the authority to adopt § 3.350(f)(4) in the first place and the Court explained that VA is powerless to provide more benefits than Congress elected to authorize. Id. at 123. In sum, the language in § 3.350(f)(4) is clear as to the requirements for the full step increase under that subsection and this language does not conflict with the statute’s intentions. Id. at
123-24; see also Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir.
2000) (“[C]anons of construction . . . require us to give effect to the clear language of a [regulation] and avoid rendering any portions meaningless or superfluous.”). Appellant fails to establish otherwise. Hilkert, 12 Vet.App. at 151. Significantly, although Appellant argues the significance of the use of the word “total” in multiple statutes that reference TDIU, he notable appears to attempt to conflate “total” with “100% rating” in order to bolster his argument. [App. Br. at 21-32]. However, the only sole reference to “total” in the statute references total deafness in one ear.
See 38 U.S.C. § 1114(p).
Regulatory section 38 C.F.R. § 3.350(f)(4) grants the payment of SMC at the next higher statutory rate where a claimant possesses an additional single permanent disability, separate and distinct from the condition that established SMC entitlement, which is independently ratable at 100%. Section 3.350(f)(4) specifically states that 100% must be “apart from any consideration of individual unemployability.” The first version of 38 C.F.R. § 3.350(f)(4) passed in 1947 likewise limited a full step increase to a disability rated at 100% “apart from any consideration of individual unemployability.” See 12 Fed.Reg. 1596 ,1597 (March 8, 1947). Accordingly, the Secretary has consistently understood and applied its laws to find that entitlement to TDIU is insufficient to establish entitlement to a full step increase under 38 C.F.R. § 3.350(f)(4). Appellant asserts that 38 C.F.R.
§ 3.350(f)(4) is inconsistent with 38 C.F.R. § 3.340(a) and (b) and § 4.16(b), because these regulations treat the inability to work as a total disability rating. [App. Br. at 31-32]. 38 C.F.R. § 3.340(a) and (b), or § 4.16(b), however, prohibit VA from restricting a step increase to a disability rated at 100% apart from individual employability under 38 C.F.R. § 3.350(f)(4) as Appellant suggests. And neither section apply to SMC. Section 4.16 describes the potential avenues upon which a claimant may be awarded TDIU. See Youngblood v. Wilkie, 31 Vet. App. 412 (2019). Section 3.340, by contrast, is merely a definition for total disability that refers to other sections to provide eligibility criteria for disability benefits and does not provide an independent authority to award total disability benefits. See Johnston v. Nicholson, 421 F.3d 1285, 1288 (Fed. Cir. 2005) (“[§ 3.340] merely sets forth the general standards for total disability ratings.”). 38 C.F.R. § 3.340(a) and (b) nor § 4.16(b) cross reference to § 3.350(f)(4) and there is no other indication that these regulations are intended to serve any other purpose with regard to an award for a step increase for SMC. These provisions do not operate for any other purpose than to define and award entitlement to TDIU, and Appellant has not provided any authority that states otherwise.
By analogy, this Court, as well as the U.S. Court of Appeals for the Federal
Circuit, have consistently upheld challenges to 38 C.F.R. § 3.350 and 38 US.C. § 1114 to the extent these provisions limited their application to TDIU based on at least one condition rated as totally disabling. See 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”); see also Guerra v. Shinseki, 642 F.3d 1046, 1049 (2011) (finding that Congress’s use of the singular and plural terms was purposeful, and therefore, the statutory text demonstrates Congress’s intent to limit the payment of SMC under § 1114(s) to a
Veteran who has a least one condition rated as totally disabling). In other words, TDIU may be applicable when determining entitlement under § 1114(s). But there is no indication that TDIU is applicable, and indeed the regulation expressly prohibits it from being considered, under § 1114(p).
Appellant’s argument that this Court has previously determined that “rated as total” means both a 100% schedular rating and a TDIU rating is not relevant to a determination of the plain meaning of 38 U.S.C. § 1114(p) or 38 C.F.R.
§ 3.350(f)(4). [App. Br. at 31-32]. As noted above, 38 C.F.R. § 3.350(f)(4) is the Secretary’s exercise of the discretionary authority under 38 U.S.C. § 1114(p), which allows the Secretary to grant the next higher or intermediate rate in the event the veteran’s service-connected disabilities exceed the requirements for any of the rates prescribed in 38 U.S.C. § 1114. Importantly, Congress did not use the phrase
“rated as total” anywhere in 38 U.S.C. § 1114(p). Compare 38 U.S.C. § 1114(p) (allowing a higher rate “in the event the veteran’s service-connected disabilities exceed the requirements for any of the rates prescribed in this section”) with § 1114(s) (permitting compensation “[i]f the veteran has a service-connected disability rated as total”]. In other words, Congress gave the Secretary discretionary authority to prescribe the next higher or intermediate rate, did not employ the phrase “rated as total” anywhere in that grant of authority, and thus, the Secretary’s regulation specifying that entitlement to a full step increase is warranted for a “single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability” is fully compatible with that authority. See Talley v. Derwinski, 2 Vet. App. 282, 287 (1992).
Finally, Appellant misrepresents the totality of the Board’s findings. The Board denied entitlement to the maximum rate authorized by 38 U.S.C. § 1114(p) because, as the Board adequately discussed, Appellant does not qualify for any of the rates provided in §§ 1114(m) through (o), and therefore cannot be entitled to the maximum rate authorized by § 1114(p). [R. at 9]. Notably, this is a finding that Appellant does not refute. See generally [App. Br. at 29-31]. The Board further explained that while Appellant has a TDIU due to his psychiatric disability, a TDIU cannot support the 100% rating required for the next higher statutory rate which properly reflects the regulatory guidance. [R. at 9-10]; Pacheco v. Gibson, 27 Vet.App. 21, 25 (2014). As such, Appellant’s arguments fail to demonstrate that the Board erred in its application of the law when it denied higher rate of SMC under 38 U.S.C. § 1114(p). [R. at 9-10]; Hilkert, 12 Vet.App. at 151. Because Appellant has not met his burden of demonstrating that he has suffered any prejudicial error, as required by law, and the Court should affirm the Board’s decision. See Berger v. Brown, 10 Vet.App. 166, 169 (1997) (“[T]he appellant . . . always bears the burden of persuasion on appeals to this Court.”).
V. CONCLUSION
Upon review of all the evidence, as well as consideration of the arguments advanced, the Court should vacate the portions of the decisions which denied entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m), (n), (o), (p), and (r), and an effective date prior to June 11, 2018, for the award of SMC based on A&A criteria, and remand those matters for readjudication. However, it should affirm the Board’s determinations that an earlier effective date for SMC at the housebound rate and an increased rating for adjustment disorder were not warranted.
Respectfully submitted,
Question
Mr cue
Well today they put in there brief an my lawyer got 7 days to respond than it back with the judge.
Ok here is the biggest issues to me.
First I apply for mental health 2003 the VA has once again left my claim pending in appeal status.
Ok so I apply for mental health with service records 2018. Granted 70% on appeal.
They VA is refusing to address any issues with the effective date. Smh.
Guess I will be do the cue if the judge allow this.
Ok effective dates for smc benfits.
They keep trying to play the informal claim game.
Smc should have been inferred they never address anything on this level.
Last they refuse to granted smc l for the mental health even tho the evidence suggest it. SMH
Last the big thing smc housebound by fact.
They keep trying to not address it.
Now it's basically we don't understand what he is talk about lol.
Than if you look they are saying that my evidence point to 2014 for smc benfits.
But the examiner didn't address that time period.
The rater is to address the time period this shit is crazy.
I will be calling my lawyer today I am not about to play the comp exam game again this really starting to piss me off.
But my fight is just started.
Because they understand my claim remaining pending in appeal status from 2003.
It was granted on appeal 2018.
Effective date is 2003.
This is how I won 8 year retro tdiu.
So if they play the smc s also go back to than.
It over they just want to keep playing with me but it's ok it will get address.
So this made my day
IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
DENIS MCDONOUGH,
Secretary of Veterans Affairs, Appellee.
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS
BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS
TABLE OF CONTENTS
CITATIONS TO THE RECORD BEFORE THE AGENCY ................................... iii
I. ISSUES PRESENTED ..................................................................................... 1
II. STATEMENT OF THE CASE 2
A. JURISDICTIONAL STATEMENT 2
B. NATURE OF THE CASE 2
C. STATEMENT OF RELEVANT FACTS 2
III. SUMMARY OF THE ARGUMENT 7
IV. ARGUMENT 8
A. THE BOARD PROVIDED AN ADEQUATE STATEMENT OF REASONS OR BASES FOR ITS DENIAL OF ENTITLEMENT TO AN INITIAL DISABILITY RATING IN EXCESS OF 70% FOR SERVICECONNECTED ADJUSTMENT DISORDER WITH DEPRESSED MOOD IN ITS NOVEMBER 22, 2021, DECISION 8
B. THE BOARD WAS NOT REQUIRED TO ADDRESS THE EFFECTIVE DATE OF APPELLANT’S ADJUSTMENT DISORDER CLAIM 16
C. THE BOARD PROVIDED AN ADEQUATE STATEMENT OF REASONS OR BASES WHEN DENYING AN EFFECTIVE DATE EARLIER THAN MAY 9, 2018, FOR SMC BASED ON HOUSEBOUND STATUS UNDER 38 U.S.C. § 1114(S) IN ITS NOVEMBER 23, 2021, DECISION 17
D. THE BOARD PROVIDED AN INADEQUATE STATEMENT OF REASONS OR BASES WHEN DENYING AN EFFECTIVE DATE EARLIER THAN JUNE 11, 2018, FOR SMC FOR A&A UNDER 38 U.S.C. § 1114(L) IN ITS NOVEMBER 23, 2021, DECISION 19
E. THE BOARD PROVIDED AN INADEQUATE STATEMENT OF REASONS OR BASES IN DENYING ENTITLEMENT TO A HIGHER LEVEL OF SMC IN ITS FEBRUARY 14, 2022, DECISION 22
F. APPELLANT FAILS TO ESTABLISH THAT THE BOARD RELIED ON AN INVALID REGULATION 24
V. CONCLUSION 32
Edited by Mr cueCITATIONS TO THE RECORD BEFORE THE AGENCY
R. at 3-10 (February 14, 2022, Board Decision) ……………………............ passim
R. at 42-49 (November 23, 2021, Board Decision) ...................................... passim
R. at 54-61 (November 22, 2021, Board Decision) ...................................... passim
R. at 71-72 (November 2021 Purported Withdrawal) ...................................... 6, 22 R. at 73-79 (November 2021 Supplemental Statement of the Case) .....................5
R. at 87 (November 12, 2021, Report of General Information) ....................... 6, 23 R. at 96 (November 10, 2021, Report of General Information) ........................... 23 R. at 685 (July 2021 VA Form 10182) .............................................................. ....6 R. at 719-22 (June 2021 Board Decision) ..............................................................6
R. at 745-49 (May 2021 Decision Review Officer Decision) ........................... 5, 18 R. at 750-51 (May 2021 Appeal to the Board) .......................................................6
R. at 758-68 (May 2021 Supplemental Statement of the Case) ............................5 R. at 775-91 (May 2021 Statement of the Case) ...................................................5 R. at 905-09 (May 2021 Board Decision) ...............................................................5 R. at 963-70 (January 2021 Memorandum Decision) ..................................... 5, 16 R. at 1244-49 (July 2019 VA Psychiatric Examination) ................................. 13, 14 R. at 1290-96 (April 2019 Appeal to the Board) .....................................................4 R. at 1338-75 (April 2019 Statement of the Case) .................................................4
R. at 1390-92 (April 2019 Rehabilitation Plan) .................................................... 24 R. at 1431-37 (August 2018 Notice of Disagreement) .................................... 4, 16 R. at 1485-89 (July 2018 Rating Decision) ............................................................4 R. at 1491 (July 2018 Paraprofessional Care Plan) ............................................ 24
R. at 1513-15 (June 2018 VA Aid and Attendance or Housebound Examination)
............................................................................................................................. 20
R. at 1568-79 (July 2018 Rating Decision) ............................................................4 R. at 2203-06 (May 2018 Claim) ..................................................................... 4, 18 R. at 2348-52 (September 2015 VR&E Special Review) .............................. 19, 21 R. at 2388-93 (January 2015 Independent Living Plan) ...................................... 20 R. at 2478-79 (September 2014 VA Social Work Note) ...................................... 20
R. at 2773-84 (April 2012 Board Decision) ............................................................4 R. at 3179-80 (June 2010 Rating Decision) ...........................................................4 R. at 3270 (April 2010 Notice of Disagreement) ....................................................4 R. at 3274-80 (January 2010 Notice Letter) ...........................................................4 R. at 3290-93 (January 2010 Rating Decision) ......................................................4 R. at 3345-68 (December 2009 Board Decision) ...................................................4 R. at 3380-95 (November 2009 Supplemental Statement of the Case).................3
R. at 3483-89 (July 2009 Board Decision) .............................................................3 R. at 4175-94 (September 2003 Statement of the Case) .......................................3 R. at 4483 (August 2002 Notice of Disagreement) ................................................3 R. at 4490 (June 2002 Notice Letter) .....................................................................3 R. at 4492-95 (June 2002 Rating Decision) ...........................................................3
R. at 4590 (November 2001 Psychiatric Claim) .....................................................3 R. at 4597 (August 2001 TDIU Claim) ...................................................................3 R. at 5083-84 (July 1994 Notice Letter) .................................................................3 R. at 5086-89 (June 1994 Rating Decision) ...........................................................3
R. at 5167-70 (January 1994 Claim) ......................................................................2 R. at 5177 (DD214) ................................................................................................2
IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
) )
)
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS
BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS
I. ISSUES PRESENTED1
A. Whether the Court should affirm the November 22, 2021, decision of the Board of Veterans’ Appeals (Board) denying entitlement to an initial disability rating in excess of 70% for service-connected adjustment disorder with depressed mood.
B. Whether the Court should affirm that portion of the November 23, 2021, Board decision that denied entitlement to an effective date prior to May 9, 2018, for the award of special monthly compensation (SMC) based on housebound criteria, and
1 This matter involves three Board decisions that have been consolidated into a single appeal by the Court: 1) a February 14, 2022, decision that denied entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m), (n), (o), (p), and (r); 2) a November 23, 2021, decision that denied an increased rating and an earlier effective date (EED) for an adjustment disorder; and 3) a November 22, 2021, decision that denied an EED for SMC at the A&A and housebound rates. remand that portion of that Board decision denying entitlement to an effective date prior to June 11, 2018, for the award of SMC based on aid and attendance (A&A).
C. Whether the Court should remand that portion the February 14,
2022, Board decision to the extent that it denied entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m),
(n), (o), (p), and (r).
II. STATEMENT OF THE CASE
A. JURISDICTIONAL STATEMENT
The Court has exclusive jurisdiction to review final decisions of the Board under 38 U.S.C. § 7252(a).
B. NATURE OF THE CASE
, appeals three consolidated Board decisions: 1) a February 14, 2022, decision that denied entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m), (n), (o), (p), and (r); a November 23, 2021, decision that denied an increased rating and an EED for an adjustment disorder; and 3) a November 22, 2021, decision that denied an EED for SMC at the A&A and housebound rates. See generally [Appellant’s Brief (App. Br.)].
C. STATEMENT OF RELEVANT FACTS
5177]. In January 1994, Appellant filed a claim seeking entitlement to service connection for a neck and elbow injury. [R. at 5167
(5167-70)]. The Regional Office (RO) issued a rating decision in June 1994, granting service connection for residuals of neck strain and denying service connection for a left elbow and hand disability. [R. at 5086 (5083-84, 5086-89)].
In November 2001, Appellant filed a claim seeking entitlement to service connection for a mood disorder and a total disability rating based on individual unemployability (TDIU). [R. at 4590, 4597]. The RO denied the claims in a June 2002 rating decision, [R. at 4490; 4492-95], and Appellant filed a timely notice of disagreement (NOD). [R. at 4483]. The RO issued a Statement of the Case (SOC) in September 2003 maintaining the denial of entitlement to TDIU and service connection for depressive mood disorder. [R. at 4191-93 (4175-94)].
In July 2009, the Board issued a decision finding that Appellant had timely filed a substantive appeal in January 1995, within one year of the June 1994 rating decision; thus, the issues of service connection for his left elbow disability and initial evaluation of his left neck muscle strain were on appeal. [R. at 3485 (348389)]. The Board remanded those issues for additional development. Id. at 3487-
89.
The RO issued a Supplemental SOC (SSOC) in November 2009, denying entitlement to service connection for residuals of a left elbow fracture with parasthesias and a disability rating in excess of 10% for muscle strain of his left neck. [R. a 3393 (3380-95)]. The Board issued a December 2009 decision
granting service connection for a left elbow disability and an initial disability rating of 20%, for Appellant’s cervical spine disability, for the period from December 14, 1993, to August 15, 2001: and remanding the issue of TDIU. [R. at 3363 (334568)]. The RO issued two rating decisions implementing the Board decision. [R. at
3179-80; 3274-80; 3290-93]. The January 2010 rating decision also assigned a 60% rating, effective August 16, 2001, [R. at 3274-80; 3290-93], to which Appellant filed a timely NOD with the effective date. [R. at 3270].
In an April 2012 decision, the Board granted entitlement to TDIU, effective December 14, 1993. [R. at 2773-84]. Appellant sought entitlement to SMC benefits and service connection for a psychiatric disorder in a May 2018 claim. [R. at 2204 (2203-06)]. In July 2018, the RO issued a rating decision granting service connection for adjustment disorder with depressed mood, evaluated as 70% disabling, effective May 9, 2018, continuing Appellant’s 60% rating for cervical spondylosis, and deferring entitlement to SMC “based on loss of use”. [R. at 157678 (1568-79)]. The RO issued another rating decision later that month, denying entitlement to SMC based on A&A, housebound, and loss of use. [R. at 1487-89
(1485-89)]. Appellant timely filed a NOD, [R. at 1431-37], and the RO issued an April 2019 SOC maintaining the prior determinations. [R. at 1372 (1338-75)].
Appellant filed a timely appeal. [R. at 1290-96].
In January 2020, the Board issued a decision in which it granted entitlement to SMC by reason of being housebound, under 38 U.S.C. § 1114(s), from May 9 to July 17, 2018, and entitlement to SMC based on the need for regular A&A of another person, under 38 U.S.C. § 1114(l), from July 17, 2018. [R at 988-96]. The Board also dismissed Appellant’s increased rating claims for his neck and left elbow conditions and declined, due to a finding of a lack of jurisdiction, to entertain a claim for increased rating of his service-connected psychiatric disorder. Id. at 990-91.
A January 2021 Memorandum Decision reversed the Board’s finding that Appellant’s October 2018 NOD did not encompass that portion of a July 2018, rating decision granting a 70% evaluation, but no higher, for a psychiatric disorder. [R. at 963, 968 (963-70)]. The Court also determined that the Board failed to address entitlement to SMC at higher (o) and (r) levels and remanded for consideration of such. Id. at 967.
Following this decision, the Board remanded the issue of entitlement to a higher SMC rate, instructed the RO to assign effective dates for SMC housebound and SMC based on the need for A&A in the first instance, and directed the RO to issue a SOC regarding entitlement to a rating in excess of 70% for his adjustment disorder with depressed mood. [R. at 907-09 (905-09)]. In May 2021, the RO issued a decision review officer decision granting entitlement to SMC based on housebound criteria from May 9, 2018, to July 16, 2018, and SMC based on A&A from July 17, 2018. [R. at 745-49]. The RO also issued a SOC denying entitlement to a disability rating in excess of 70% for adjustment disorder with depressed mood, [R. at 775-91], and a SSOC denying entitlement to SMC at a rate greater than A&A and housebound. [R. at 763-67 (758-68)]; see also [R. at 77-79 (73-79)
(November 2021 SSOC denying entitlement to SMC at the O and R rates)].
Appellant filed a timely appeal as to his assigned adjustment disorder rating, [R. at 750-51], and a timely VA Form 10182 on the issue of the effective date assigned for housebound and A&A SMC electing the direct review option. [R. at 685].
The Board remanded the issue of entitlement to a higher level of SMC in a June 2021 decision for an examination and an opinion as to whether Appellant has the functional equivalent of loss of use of his left hand and/or arm. [R. at 719-22]. Attempts to obtain an examination pursuant to the Board’s remand order were futile and Appellant made it clear that he did not desire to attend another examination. [R. at 87]. In November 2021, Appellant submitted a statement that he was withdrawing “the remand [from] June 29, 2021, for loss of use” but is not withdrawing his claim for SMC at the (o) and (r) rates. [R. at 71 (71-72)].
In its November 22, 2021, decision, the Board found that throughout the period on appeal, Appellant’s adjustment disorder symptomology has been productive of, at most, occupational and social impairment with deficiencies in most areas during the entire appeal period as such a rating in excess of 70% is not warranted at any time. [R. at 61 (54-61)].
The following day, November 23, 2021, the Board issued another decision denying entitlement to an effective date prior to May 9, 2018, for the award of SMC based on housebound criteria. [R. at 48 (42-49)]. The Board also granted an effective date of June 11, 2018, for the award of SMC based on A&A. Id. at 49.
On February 14, 2022, the Board issued a third decision granting entitlement to an increased level of SMC under 38 U.S.C. § 1114(p) and denying entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m), (n), (o), (p), and (r). [R. at 3-10]. The Board, in denying entitlement to a higher level of SMC, declined to address Appellant’s loss of use claim finding that his November 2021 correspondence constituted a withdrawal that became effective once it was
received. Id. at 5.
On May 27, 2022, the Court consolidated all three Board decisions into this case. This appeal followed.
III. SUMMARY OF ARGUMENT
The Board, in its November 22, and 23, 2021, decisions, reasonably concluded, based on the evidence of record, that an earlier effective date was not warranted for SMC at the housebound rate and an increased rating was not warranted for adjustment disorder. Specifically, the Board considered all relevant evidence of record, properly interpreted the applicable legal principles, and adequately explained its findings as required by law. Appellant has not demonstrated that the Board committed prejudicial error that would warrant any action by the Court other than affirmance of these determinations. However, this
Court should vacate the portions of the February 14, 2022, and November 23,
2021, decisions which denied entitlement to a higher level of SMC, including under
38 U.S.C. §§ 1114(m), (n), (o), (p), and (r), and an effective date prior to June 11, 2018, for the award of SMC based on A&A criteria as the Board failed to provide an adequate statement of reasons or bases for these determinations.
IV. ARGUMENT
A. THE BOARD PROVIDED AN ADEQUATE STATEMENT OF REASONS OR BASES FOR ITS DENIAL OF ENTITLEMENT TO AN INITIAL DISABILITY RATING IN EXCESS OF 70% FOR SERVICECONNECTED ADJUSTMENT DISORDER WITH DEPRESSED MOOD IN ITS NOVEMBER 22, 2021, DECISION.
The Board’s November 22, 2021, determination of the proper disability rating is a finding of fact that the Court reviews under the clearly erroneous standard of review. 38 U.S.C. § 7261(a)(4); Buckley v. West, 12 Vet.App. 76, 81 (1998). Under this standard, if the Board’s findings are supported by a plausible basis in the record, they cannot be disturbed even if the Court concludes that it would not have reached the same decision. Gilbert v. Derwinski, 1 Vet. App. 49, 52-53
(1990).
Pursuant to 38 C.F.R. § 4.130, a 70% disability rating is warranted for:
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
38 C.F.R. § 4.130. Finally, a 100% disability rating is warranted for:
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
Id. Because the symptoms enumerated in § 4.130 are not an exhaustive list, the Court has held that VA must consider “all the evidence of record that bears on occupational and social impairment,” and then “assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering.” Mauerhan v. Principi, 16 Vet.App. 436, 440-41 (2002); see Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017) (requiring VA to “engage in a holistic analysis” of the claimant’s symptoms to determine the proper disability rating). Moreover, the Court has held that “a veteran may only qualify for a given disability rating under [38 C.F.R.] § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.”
Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); see 38 C.F.R. § 4.126(a).
A Board decision must be supported by statements of reasons or bases which adequately explains the basis of its material findings and conclusions. 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57. This generally requires the Board to analyze the probative value of the evidence, account for that which it finds persuasive or unpersuasive, and explain the basis of its rejection of evidence materially favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Court reviews the Board’s findings of fact under the clearly erroneous standard. 38 U.S.C. § 7261(a)(4).
Appellant argues that the Board provided inadequate reasons or bases for denying an increased rating for a psychiatric disorder. [App. Br. at 17-21]. He contends that the Board failed to address symptoms of record, [App. Br. at 18-19], consider symptomology not contemplated for a 100% PTSD rating, [App. Br. at 19], adequately address his social impairment, [App. Br. at 19-21], and address the severity, frequency, or duration of his symptoms. [App. Br. at 21]. However, the Board provided adequate reasons or bases for its determination.
When rating a veteran’s psychiatric condition, “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vazquez-Claudio, 713 F.3d at 117. In Vazquez-Claudio, the Federal Circuit ultimately upheld the Board’s determination based on the veteran’s symptomatology, holding that “[a]lthough we acknowledge that the Board might have elaborated in more detail why Mr. Vazquez-Claudio had not suffered impairment in certain of the referenced areas, we cannot say that it failed to make the necessary findings to support its conclusion that Mr. Vazquez-Claudio’s symptoms were not indicative” of the level impairment required by the regulation. 713 F.3d at 118. Similarly, in the instant case, after reviewing the evidence of record regarding Appellant’s symptomatology, [R. at 59-61], the Board found that
Appellant’s “mental disability has been characterized by depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances[,]” but the Board explained that these symptoms did not “more nearly approximate[] total occupational and social impairment.” [R. at 61]. The Board parsed the limitations caused by Appellant’s psychiatric disability from the limitations caused by Appellant’s other disabilities and found that Appellant’s psychiatric disabilities alone did not produce total occupational and social impairment, as would be required for an increased rating. [R. at 60-61]. The Board therefore performed the task required of it: weighing the evidence of record and focusing on Appellant’s symptoms and the degree of occupational and social impairment they produce. See Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (explaining that it is the responsibility of the Board to assess the probative weight of the evidence).
Appellant argues that the Board failed to address several symptoms of record. [App. Br. at 18-19]. However, Appellant does not note any symptoms that would warrant an increased rating or otherwise explain how the symptoms he listed would result in an increased rating. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error). In fact, none of the symptoms listed by Appellant can be found under the criteria for a 100% rating. For example, Appellant contends that the Board did not adequately address symptoms listed under the 30% rating criteria such as his panic attacks that occur weekly or less often and chronic sleep impairment; symptoms listed in the 50% rating criteria including flattened affect, disturbances in motivation and mood, impairment of short and long term memory, difficulty in understanding complex commands, and impaired abstract thinking; and symptoms listed in the 70% rating criteria such as suicidal ideation, obsessional rituals which interfere with routine activities, and near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. 38 C.F.R. § 4.130. None of the symptoms Appellant lists can be found under the criteria for a 100% rating. Id. As this Court has held that the symptoms listed within the rating criteria “are not intended to constitute an exhaustive list, but rather to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating[,]” specifically explaining that the Board should focus on a claimant’s overall social and occupational impairment rather than the specific absence or presence of the listed symptoms, Appellant has entirely failed to support his assertion of error by the Board. See Mauerhan, 16 Vet.App. at 44243; see also Hilkert, 12 Vet.App. at 151. To the extent that the Board did not address these specific symptoms, this is not evidence of inadequate reasons or bases. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding that the Board need not comment upon every piece of evidence contained in the record). Moreover, Appellant appears to simply be disagreeing with how the Board weighed the evidence of record, to include his psychiatric symptoms, and a disagreement with how the Board weighed the evidence is not a valid basis for remand. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (“The Court of Appeals for Veterans Claims, as part of its clear error review, must review the Board’s weighing of the evidence; it may not weigh any evidence itself.”).
Appellant further argues that the Board erred by relying on his ability to manage his financial affairs and leave the house daily for “various activities.” [App. Br. at 19]; [R. at 1249 (1244-49)]. Appellant’s argument is based on a misunderstanding of the Board’s analysis. Notably, neither the criteria for a 70% nor 100% rating require or contemplate financially incompetency or home confinement. 38 C.F.R. § 4.130. However, the Board did not rely on either to deny a higher rating. [R. at 59-60]. Rather, the Board deemed it relevant to highlight these findings while providing additional discussion regarding the 2019 VA examination report and weigh them against other noted symptomology to
determine the appropriate rating. [R. at 59]; [R. at 1249 (1244-49)]; see Delrio v. Wilkie, 32 Vet.App. 232, 243 (2019) (explaining that the Board cannot simply adopt statements of a VA examiner without reconciling the opinion with other evidence of record). This is precisely the analysis the Board was required to conduct under 38 C.F.R. § 4.130.
Appellant also contends that the Board did not adequately explain whether “total” occupational impairment requires complete lack of ability to engage in any work whatsoever or only requires the veteran to show a total inability to earn substantial gainful employment. [App. Br. at 19]; [R. at 60]. This argument conflates the standards for a TDIU rating and an increased psychiatric rating failing to establish error. See Hilkert, 12 Vet.App. at 151. The Board properly considered the fact that there is no indication that Appellant’s adjustment disorder would totally impair his employment despite there being a “severe” impact on his ability to maintain employment. [R. at 60]; [R. at 1249 (1244-49)]. Indeed, controlling rating criteria contemplate the level of occupational impairment a veteran is suffering without regard to an ability to maintain gainful employment. 38 C.F.R. § 4.130; Mauerhan, 16 Vet.App. at 440-41.
Next, Appellant’s argument that the Board failed to adequately address his social impairment is unpersuasive. [App. Br. at 19-21]. As might be inferred from
Appellant’s citation to non-precedential authority for this proposition, [App. Br. at 19-20], there is no reason for the Board to have treated Appellant’s family relationships as categorically different from other social relationships when determining his social impairment. See 38 C.F.R. § 4.126(b) (“When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.”). At any rate, the Board’s discussion regarding Appellant’s family relationships in determining the degree of social impairment appears to stem from the evidence of record largely describing his social interactions as taking place with family members. [R. at 60]; see, e.g., [R. at 1247, 1249 (1244-49)]. Ultimately, the Board reviewed the evidence of record to determine the degree of occupational and social impairment, as it must do in assigning a rating. 38 C.F.R. § 4.130. Notably, Appellant does not provide any explanation regarding the actual prejudicial error that he believes the Board committed, as pertains to his case.
Shinseki, 556 U.S. at 409; Hilkert, 12 Vet.App. at 151. Specifically, while Appellant seems to believe that the Board should have considered something other than his familial relationships when assessing his social impairment, he points to absolutely no evidence that the Board should have otherwise addressed, and only relies on non-precedential cases, which by definition are not binding on his case, to support his theory that the Board should have relied on some other evidence. [App. Br. at 19-21]. As Appellant has not provided any evidence or legal support for his underdeveloped argument, the Secretary cannot fully respond, and the Court should decline to do the same. Chase v. West, 13 Vet.App. 413, 414 (2000) (per curiam order) (holding that an appellant’s contention must fail when he does not cite to authority to support it).
Finally, Appellant argues that the Board failed to specify the severity, frequency, or duration of his symptoms. [App. Br. at 21]. This argument ignores the Board’s entire analysis. After reviewing Appellant’s symptoms and comparing
Appellant’s symptoms to the criteria for 70% and 100% ratings, [R. at 59-61], the Board concluded that “the weight of the medical and lay evidence shows that the severity, frequency, and duration of [Appellant’s] listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70% disability rating.” [R. at 61]. As such, the Board has supported its decision regarding the appropriate disability rating for Appellant’s adjustment disorder claim with thorough reasons or bases regarding the relevant evidence, and Appellant fails to establish otherwise.
Hilkert, 12 Vet.App. at 151; Gilbert, 1 Vet.App. at 52-53 (a finding of fact is not clearly erroneous if there is a plausible basis for it in the record).
B. THE BOARD WAS NOT REQUIRED TO ADDRESS THE EFFECTIVE DATE OF APPELLANT’S ADJUSTMENT DISORDER CLAIM.
Appellant asserts that the Board, in the November 22, 2021, decision, failed to address whether an EED is warranted for his service-connected psychiatric disorder. [App. Br. at 21-22]. Specifically, Appellant argues that his 2018 NOD served to raise the issue of the appropriate effective date for the grant of service connection for his adjustment disorder. Id.; [R. at 1431-37]. This argument must
fail.
This Court, in its January 2021 memorandum decision, held that the August
2018 NOD “clearly indicated his intent to appeal all issues decided in both July 2018 rating decisions, including the evaluation assigned for his psychiatric disorder.” [R. at 968 (963-70)]. The decision reversed the Board’s finding that the
NOD did not encompass that portion of a July 5, 2018, rating decision granting a 70% evaluation for a psychiatric disorder and remanded the issue for further adjudication. Id. Nothing in the memorandum decision, to include the opening statement that clearly articulated that the Court was “revers[ing] the Board’s finding that [Appellant’s August] 2018 NOD did not encompass that portion of a July 5, 2018, rating decision granting a 70% evaluation, but no higher, for a psychiatric disorder[,]” Id. at 912-19) or the NOD, [R. at 1431-37], in any way relates to the issue of obtaining an effective date earlier than the May 2018 date of claim.
Indeed, this is an issue that Appellant raises for the first time in his initial brief, despite this case previously being before the Court once and the Board multiple times. See Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990) (“Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court” because piecemeal litigation hinders the decision making process). Therefore, the Board had no reason to have adjudicated the effective date based on Appellant’s present theory about the legal effect of lay statements submitted in 2003, which has never before been raised. Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (stating that Board is “not required sua sponte to raise and reject ‘all possible’ theories of entitlement in order to render a valid opinion”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
C. THE BOARD PROVIDED AN ADEQUATE STATEMENT OF REASONS OR BASES WHEN DENYING AN EFFECTIVE DATE EARLIER THAN MAY 9, 2018, FOR SMC BASED ON HOUSEBOUND STATUS UNDER 38 U.S.C. § 1114(S) IN ITS NOVEMBER 23, 2021, DECISION.
Appellant argues that the Board in its November 23, 2021, decision provided inadequate reasons or bases as to SMC at the housebound rate. [App. Br. at 2627]. This argument is without merit.
Pursuant to 38 U.S.C. § 1114(s) a veteran is entitled to SMC if his or her service-connected disabilities render the veteran permanently housebound. The requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime. 38 U.S.C. § 1114(s). Generally, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400 (“Except as otherwise provided, the effective date of an evaluation and award of . . . compensation . . . based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later.” (emphasis added)). However, in a claim for an increased rating, the effective date may date back as much as one year before the date of the claim for increase if it is factually “ascertainable that an increase in disability had occurred” within that one-year period. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). It is well established that a Board determination of the proper effective date is a finding of fact that the Court reviews under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4).
Here, the record reflects that, on May 9, 2018, Appellant filed a claim seeking SMC, [R. at 2204 (2203-06)], which serves as the current effective date for SMC at the housebound rate. See [R. at 48]; [R. at 745-49]; [R at 996 (988-96)]. In this regard, the Board found that “the record indicates his eligibility for statutory housebound status arose due to service connection for adjustment disorder being granted from May 9, 2018” and “as of May 9, 2018, the Veteran had one disability rated as totally disabling.” [R. at 48]. Thus, as the Board found, the facts in this case do not support an effective date prior to the May 2018 date of claim. Id.; see 38 C.F.R. § 3.401(a)(1). While Appellant argues that the Board provided inadequate reasons or bases for denying SMC at the housebound rate because it did not define the relevant term of “substantially confined,” [App. Br. at 26-27], the earliest possible effective date for SMC statutory housebound eligibility has been assigned. See Lamb v. Peake, 22 Vet.App. 227, 235 (2008) (holding that there is no prejudicial error when a remand for a decision on the merits would serve no useful purpose). Crucially, Appellant fails to explain how any such definition could result in an EED and the argument should be rejected by the Court. Hilkert, 12 Vet.App. at 151; Brewer v. West, 11 Vet.App. 228, 236-37 (1998) (holding that where appellant offers “mere assertions . . . for which he has not provided any legal support, . . . the Court need not deal further with such a vague argument”).
D. THE BOARD PROVIDED AN INADEQUATE STATEMENT OF REASONS OR BASES WHEN DENYING AN EFFECTIVE DATE EARLIER THAN JUNE 11, 2018, FOR SMC FOR A&A UNDER 38 U.S.C. § 1114(L) IN ITS NOVEMBER 23, 2021, DECISION.
Appellant contends that the November 23, 2021, Board provided inadequate reasons or bases as to the effective date for SMC at the A&A rate. [App. Br. at 2226]. This argument relies on records dated prior to the current June 2018 effective date that suggest that Appellant required A&A earlier in the appeal period. Id.; see also [R. at 2349 (2348-52) (September 2015 Special Administrative Review wherein Appellant indicated that he had difficulties performing activities of daily living (ADLs) to include preparing meals, moving from a sitting to a standing position, walking long distances and driving) ]; [R. at 2390 (2388-93) (January 2015 Counseling Report and Rehabilitation Plan noting that Appellant has difficulty performing ADLs)]; [R. at 2478 (2478-79) (September 2014 Social Work Note indicating that Appellant had difficulty maintaining his home, i.e. cutting grass, trimming/edging, leaf disposal and snow removal)]. The Secretary concedes that the Board failed to address this potentially favorable evidence in considering the appropriate effective date for Appellant’s SMC A&A benefits. The Secretary further concedes, consistent with Appellant’s arguments, that the Board did not address the adequacy of the June 2018 VA examination report, and the fact that this report did not state when Appellant’s limitations in activities of daily living began. [App. Br. at 23]; [R. at 1513-15]. Therefore, the Court should remand this part of the Board’s decision for an adequate statement of reasons or bases regarding the adequacy of the June 2018 examination and for the Board to address the highlighted evidence in determining whether it warrants an earlier effective date for SMC at the A&A rate. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has . . . failed to provide an adequate statement of reasons or bases for its determination.").
However, to the extent that Appellant argues that the Board should have considered whether any of the above-described medical records constituted an informal claim for SMC or an informal claim for an increased rating to include SMC, his argument is without merit. [App. Br. at 24]; see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991). Some of Appellant’s evidence that he argues might have been an informal claim was after March 24, 2015, the last date when VA accepted informal claims for benefits. See, e.g. [R. at 2350 (2348-52)]; see also Bailey v. Wilkie, 33 Vet.App. 188, 198 (2021) (“Prior to March 24, 2015, the effective date of these amendments, VA accepted both formal and informal claims for benefits”). Appellant also fails to explain how the remaining evidence consists of medical records that were submitted as part of a claim for benefits, or otherwise satisfied the criteria as an informal claim. See Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) (“The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for benefits.”). Similarly, he argues that “SMC may be considered part of a claim for increased compensation,” but fails to carry his burden of identifying the claims that
SMC would attach to or explaining how any further consideration of Akles, 1
Vet.App. at 118, would be determinative in this case. See Hilkert, 12 Vet.App. at
151; see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments). Therefore, although remand is warranted for proper consideration of entitlement to an EED for the award of SMC based on A&A criteria, the Court should only remand this case for the reasons conceded by the Secretary. See Mayfield v. Nicholson, 19 Vet.App. 103, 129 (2005) (where judicial review is not hindered by deficiency of reasons or bases, a remand for reasons or bases error would be of no benefit to the appellant and would therefore serve no useful purpose).
E. THE BOARD PROVIDED AN INADEQUATE STATEMENT OF REASONS OR BASES IN DENYING ENTITLEMENT TO A HIGHER LEVEL OF SMC IN ITS FEBRUARY 14, 2022, DECISION.
Appellant contends that the Board, in its February 2022 decision, failed to provide any analysis as to whether his purported withdrawal of his loss of use claim was explicit, unambiguous, and included a statement that the appeal is withdrawn.
[App. Br. at 27-28]. The Secretary agrees.
VA’s regulations provide that an appellant or an appellant's authorized representative may withdraw an appeal, and an appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.205(a). A withdrawal must include (1) the name of the veteran or claimant, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. 38 C.F.R. § 20.205(b)(1). “If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal.” Id. A written withdrawal must be explicit and unambiguous. Hembree v. Wilkie, 33 Vet.App. 1, 5-6 (2020) (the Board may need to consider other evidence to determine whether the purported withdrawal complies with the regulatory requirements). The Court reviews the Board's conclusion that an appellant has withdrawn an appeal or issue therein under the “clearly erroneous” standard of review. Kalman v. Principi, 18 Vet.App. 522, 524 (2004).
Here, Appellant, in November 2021, submitted a statement that he withdraws “the remand [from] June 29, 2021 for loss of use” but does not withdraw his claim for SMC at the (o) and (r) rates. [R. at 71 (71-72)]. A report of general information completed a few days prior to Appellant’s submission indicates that Appellant expressed some concerns about the nature of his SMC claims and sought clarification regarding the status. [R. at 87]; see also [R. at 96]. The Board noted the November 2021 correspondence finding it to be a withdrawal of Appellant’s claim for loss of use that became effective once received by VA. [R. at 5]. However, the Board failed to provide any additional analysis regarding the contents of the purported withdrawal to support its conclusion; thus, the Secretary concedes that remand is required for proper consideration as to whether Appellant withdrew his claim for SMC loss of use. Warren v. McDonald, 28 Vet.App. 214, 218 (2016) (determining whether a veteran's withdrawal of a claim was effective requires the Court to review the totality of the circumstances); Verdun v. Brown, 8 Vet.App. 529, 533 (1996) (requiring the Board to take “into account all of the facts relating to the status of the claim,” as well as the nonadversarial nature of the VA claims process and VA's obligation “to construe liberally all submissions by a claimant”).
Next, the Board found that Appellant to be entitled to SMC at the (l) rate based on his need for regular A&A of another person for his service-connected neck and left elbow disabilities. [R. at 3, 9 (3-10)]. The Board explained that a separate entitlement to SMC under § 1114(l) is not warranted for Appellant’s service-connected psychiatric disability because the evidence does not demonstrate that there is a need for regular A&A due to this disability. Id. at 9. Appellant asserts that the Board erred in making this finding because evidence shows otherwise. [App. Br. at 28-30]. However, this argument is unsupported. While some records related to his A&A may contain psychiatric components, Appellant fails to establish that the basis for such needs result solely from his psychiatric disability. Hilkert, 12 Vet.App. at 151; see also [R. at 1491 (July 2018 paraprofessional plan clearly listing Appellant’s condition as cervical spine and pain)]; [R. at 1390-92 (April 2019 Rehabilitation Plan addressing mainly physical objectives related to Appellant’s ADLs)]. Moreover, because the Secretary has already conceded error regarding the Board’s consideration of entitlement to a higher level of SMC and the purported withdrawal, Appellant has the opportunity to present this argument to the Board upon remand. Best v. Principi, 15 Vet. App. 18, 20 (2001) (noting that the factual and legal context may change following a remand to the Board and explaining that a narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication).
F. APPELLANT FAILS TO ESTABLISH THAT THE BOARD RELIED ON AN INVALID REGULATION.
Appellant asserts that 38 C.F.R. § 3.350(f)(4) is inconsistent with the statutory scheme, 38 U.S.C. § 1114(p), as well as the Secretary’s own regulations. [App. Br. at 30-32]. He argues that Congress did not intend to limit additional compensation for Veterans who did not satisfy the schedular criteria for a 100% rating but nevertheless experience the same disabling effects from their serviceconnected disabilities as veterans rated at a schedular 100%. Id. at 31. The Secretary respectfully disagrees as discussed below and maintains that
§ 3.350(f)(4) is a valid regulation consistent with the statutory intent.
Under 38 U.S.C. § 1114(p), in pertinent part, “in the event the veteran’s service-connected disabilities exceed the requirements for any of the rates prescribed in this section, the Secretary may allow the next higher rate or an intermediate rate …” 38 U.S.C. § 1114(p).
The implementing VA regulation, 38 C.F.R. § 3.350(f)(4), provides for
“[a]dditional independent 100 percent ratings” explaining that:
“[i]n addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100[%] apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o)…”
38 C.F.R. § 3.350(f)(4).
Interpreting the plain meaning of a regulation requires the Court to “bring all its interpretative tools to bear” and to “make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.” Kisor v. Wilkie, 139 S. Ct. 2400, 2423-24 (2019). A regulation may be genuinely ambiguous if it does not directly address an issue, or if it is capable of more than one reasonable reading when applied to similar fact patterns. Id. at 2410. A regulation, however, is not ambiguous merely because both parties reasonably interpret that the plain meaning of a regulation supports his or her position. Id. at 2423. (“And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.”). It is well settled that when determining a statute or regulation’s plain meaning, the specific language at issue and the overall structure of the statute or regulation must be examined. Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) (citing Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 403-05, 108 S. Ct. 1255, 99 L. Ed. 2d 460 (1988)), aff'd sub nom.
Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 7 115, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994). “Where a statute’s language is plain, and its meaning clear, no room exists for construction. There is nothing to construe.” Id. at 587- 88. “In the absence of an express definition, words are given their ordinary meaning.” Prokarym v. McDonald, 27 Vet.App. 307, 310 (2015) (citing Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003)). “If the plain meaning is clear from its text and structure, then that meaning controls and that is the end of the matter.” Atencio v. O’Rourke, 30 Vet.App. 74, 82 (2018). When assessing the meaning of a regulation, words should not be read in isolation but rather in the context of the regulatory structure and scheme. Id.
38 C.F.R. § 3.350(f) implements 38 U.S.C. § 1114(p). See Barry v. McDonough, 35 Vet.App. 111, 122 (2022). The Court recently addressed a challenge to the validity of 38 C.F.R. § 3.350(f) in Barry and explained in its analysis that, in 38 U.S.C. § 1114(p), Congress provides that the Secretary may allow the next higher rate or an intermediate rate. Id. at 122. Further, the use of the terms “the” and “an” in conjunction with the singular term “rate” in the authorizing statute indicates that one singular rate will be provided through any regulation the Secretary adopted to implement the statute. Id.
Contrary to Appellant’s argument, and consistent with the Court’s analysis in Barry, 38 C.F.R. § 3.350(f)(4) does not impose restrictions on entitlement, rather, the regulation sets forth regulatory guidelines that a veteran must follow to receive the next higher rate authorized by 38 U.S.C. § 1114. [App. Br. at 30-32]. The plain language of 38 C.F.R. § 3.350(f)(4) does not support Appellant’s interpretation which presumes, without supporting authority, that veterans who do not satisfy the schedular criteria for a 100% rating nevertheless experience the same disabling effects from their service-connected disabilities as veterans who do. [App. Br. at 31]. Nor does it support Appellant’s request to strike § 3.350(f)(4) to the extent it excludes TDIU as a basis on which to grant increased SMC. [App. Br. at 31-32].
Indeed, the Barry Court explained that VA’s implementation of the regulation, 38 C.F.R. § 3.350(a), recognizes the plurality of the statute and the varying approaches through its implementing regulations is a faithful application of the choices Congress made. Barry, 35 Vet.App. at 122-123. Section 1114(p) is significant because it is what provides VA with the authority to adopt § 3.350(f)(4) in the first place and the Court explained that VA is powerless to provide more benefits than Congress elected to authorize. Id. at 123. In sum, the language in § 3.350(f)(4) is clear as to the requirements for the full step increase under that subsection and this language does not conflict with the statute’s intentions. Id. at
123-24; see also Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir.
2000) (“[C]anons of construction . . . require us to give effect to the clear language of a [regulation] and avoid rendering any portions meaningless or superfluous.”). Appellant fails to establish otherwise. Hilkert, 12 Vet.App. at 151. Significantly, although Appellant argues the significance of the use of the word “total” in multiple statutes that reference TDIU, he notable appears to attempt to conflate “total” with “100% rating” in order to bolster his argument. [App. Br. at 21-32]. However, the only sole reference to “total” in the statute references total deafness in one ear.
See 38 U.S.C. § 1114(p).
Regulatory section 38 C.F.R. § 3.350(f)(4) grants the payment of SMC at the next higher statutory rate where a claimant possesses an additional single permanent disability, separate and distinct from the condition that established SMC entitlement, which is independently ratable at 100%. Section 3.350(f)(4) specifically states that 100% must be “apart from any consideration of individual unemployability.” The first version of 38 C.F.R. § 3.350(f)(4) passed in 1947 likewise limited a full step increase to a disability rated at 100% “apart from any consideration of individual unemployability.” See 12 Fed.Reg. 1596 ,1597 (March 8, 1947). Accordingly, the Secretary has consistently understood and applied its laws to find that entitlement to TDIU is insufficient to establish entitlement to a full step increase under 38 C.F.R. § 3.350(f)(4). Appellant asserts that 38 C.F.R.
§ 3.350(f)(4) is inconsistent with 38 C.F.R. § 3.340(a) and (b) and § 4.16(b), because these regulations treat the inability to work as a total disability rating. [App. Br. at 31-32]. 38 C.F.R. § 3.340(a) and (b), or § 4.16(b), however, prohibit VA from restricting a step increase to a disability rated at 100% apart from individual employability under 38 C.F.R. § 3.350(f)(4) as Appellant suggests. And neither section apply to SMC. Section 4.16 describes the potential avenues upon which a claimant may be awarded TDIU. See Youngblood v. Wilkie, 31 Vet. App. 412 (2019). Section 3.340, by contrast, is merely a definition for total disability that refers to other sections to provide eligibility criteria for disability benefits and does not provide an independent authority to award total disability benefits. See Johnston v. Nicholson, 421 F.3d 1285, 1288 (Fed. Cir. 2005) (“[§ 3.340] merely sets forth the general standards for total disability ratings.”). 38 C.F.R. § 3.340(a) and (b) nor § 4.16(b) cross reference to § 3.350(f)(4) and there is no other indication that these regulations are intended to serve any other purpose with regard to an award for a step increase for SMC. These provisions do not operate for any other purpose than to define and award entitlement to TDIU, and Appellant has not provided any authority that states otherwise.
By analogy, this Court, as well as the U.S. Court of Appeals for the Federal
Circuit, have consistently upheld challenges to 38 C.F.R. § 3.350 and 38 US.C. § 1114 to the extent these provisions limited their application to TDIU based on at least one condition rated as totally disabling. See 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”); see also Guerra v. Shinseki, 642 F.3d 1046, 1049 (2011) (finding that Congress’s use of the singular and plural terms was purposeful, and therefore, the statutory text demonstrates Congress’s intent to limit the payment of SMC under § 1114(s) to a
Veteran who has a least one condition rated as totally disabling). In other words, TDIU may be applicable when determining entitlement under § 1114(s). But there is no indication that TDIU is applicable, and indeed the regulation expressly prohibits it from being considered, under § 1114(p).
Appellant’s argument that this Court has previously determined that “rated as total” means both a 100% schedular rating and a TDIU rating is not relevant to a determination of the plain meaning of 38 U.S.C. § 1114(p) or 38 C.F.R.
§ 3.350(f)(4). [App. Br. at 31-32]. As noted above, 38 C.F.R. § 3.350(f)(4) is the Secretary’s exercise of the discretionary authority under 38 U.S.C. § 1114(p), which allows the Secretary to grant the next higher or intermediate rate in the event the veteran’s service-connected disabilities exceed the requirements for any of the rates prescribed in 38 U.S.C. § 1114. Importantly, Congress did not use the phrase
“rated as total” anywhere in 38 U.S.C. § 1114(p). Compare 38 U.S.C. § 1114(p) (allowing a higher rate “in the event the veteran’s service-connected disabilities exceed the requirements for any of the rates prescribed in this section”) with § 1114(s) (permitting compensation “[i]f the veteran has a service-connected disability rated as total”]. In other words, Congress gave the Secretary discretionary authority to prescribe the next higher or intermediate rate, did not employ the phrase “rated as total” anywhere in that grant of authority, and thus, the Secretary’s regulation specifying that entitlement to a full step increase is warranted for a “single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability” is fully compatible with that authority. See Talley v. Derwinski, 2 Vet. App. 282, 287 (1992).
Finally, Appellant misrepresents the totality of the Board’s findings. The Board denied entitlement to the maximum rate authorized by 38 U.S.C. § 1114(p) because, as the Board adequately discussed, Appellant does not qualify for any of the rates provided in §§ 1114(m) through (o), and therefore cannot be entitled to the maximum rate authorized by § 1114(p). [R. at 9]. Notably, this is a finding that Appellant does not refute. See generally [App. Br. at 29-31]. The Board further explained that while Appellant has a TDIU due to his psychiatric disability, a TDIU cannot support the 100% rating required for the next higher statutory rate which properly reflects the regulatory guidance. [R. at 9-10]; Pacheco v. Gibson, 27 Vet.App. 21, 25 (2014). As such, Appellant’s arguments fail to demonstrate that the Board erred in its application of the law when it denied higher rate of SMC under 38 U.S.C. § 1114(p). [R. at 9-10]; Hilkert, 12 Vet.App. at 151. Because Appellant has not met his burden of demonstrating that he has suffered any prejudicial error, as required by law, and the Court should affirm the Board’s decision. See Berger v. Brown, 10 Vet.App. 166, 169 (1997) (“[T]he appellant . . . always bears the burden of persuasion on appeals to this Court.”).
V. CONCLUSION
Upon review of all the evidence, as well as consideration of the arguments advanced, the Court should vacate the portions of the decisions which denied entitlement to a higher level of SMC, including under 38 U.S.C. §§ 1114(m), (n), (o), (p), and (r), and an effective date prior to June 11, 2018, for the award of SMC based on A&A criteria, and remand those matters for readjudication. However, it should affirm the Board’s determinations that an earlier effective date for SMC at the housebound rate and an increased rating for adjustment disorder were not warranted.
Respectfully submitted,
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