200207-61572
200207-61572
| Board of Vet. App. | Sep 29, 2021Background
- Veteran served 1960–1984 (Vietnam) and appealed VA disability decisions via Board Direct Review (no post-decision evidence considered).
- Service‑connected conditions include dyshidrotic eczematous dermatitis (60%), neck scar residuals (50% + 10%), coronary artery disease (10%), benign paroxysmal positional vertigo (BPPV) (10%), psychomotor epilepsy (10%), tinnitus (10%), glossopharyngeal/nerve injury residuals (10%), and noncompensable ratings for bilateral hearing loss and right carotid artery disease; combined rating = 90%.
- Veteran reported no employment since 2014; VA records show unemployment in 2014; Veteran requested TDIU in his February 2020 appeal.
- Board found the service‑connected disabilities alone render the Veteran unable to secure or follow substantially gainful employment and granted TDIU.
- Board denied a separate compensable rating for right carotid artery stenosis/endarterectomy residuals (held duplicative of coronary artery disease under 38 C.F.R. § 4.14) and remanded issues: BPPV effective date and higher rating, compensable rating for post‑operative superficial cutaneous nerve injury (inadequate exam), and entitlement to SMC (housebound) from Feb 1, 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TDIU | Veteran: service‑connected disabilities (incl. epilepsy) render him unemployable since 2014 | VA: must meet schedular criteria (one ≥40% and combined ≥70%) and medical evidence supports evaluation | Granted TDIU |
| Separate compensable rating for right carotid artery stenosis/endarterectomy residuals (on/after Feb 1, 2014) | Veteran: carotid disease/endarterectomy residuals warrant a separate compensable rating | VA: carotid disease and coronary artery disease represent the same disability; 38 C.F.R. § 4.14 bars separate compensable rating | Denied |
| Effective date and higher initial rating for BPPV | Veteran: BPPV effective date should be Dec 5, 2013 (aligned with carotid award) and initial 60% rating warranted | VA: record lacks requested private treatment records and needs further development | Remanded (obtain private records; develop evidence) |
| Initial compensable rating for post‑op superficial cutaneous nerve injury (right neck/jaw numbness) | Veteran: nerve injury residuals warrant a compensable rating | VA: December 2019 VA exam diagnosed a peripheral nerve condition but did not identify specific cutaneous nerve(s) — examination inadequate | Remanded (obtain an adequate VA neurological exam identifying specific nerves) |
| Special Monthly Compensation (housebound) from Feb 1, 2014 | Veteran: SMC at housebound rate warranted from Feb 1, 2014 | VA: SMC is ancillary to TDIU/increased rating claims which are being remanded/developed | Remanded (ancillary to other remanded matters) |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (claim for TDIU is part of the claim for underlying disabilities when raised during adjudication)
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must ensure medical examinations are thorough and contemporaneous)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must ensure obtained medical evaluations are adequate for rating decisions)
- Murphy v. Derwinski, 1 Vet. App. 78 (1990) (VA should obtain relevant private treatment records)
- Bell v. Derwinski, 2 Vet. App. 611 (1992) (duty to assist includes obtaining private records when relevant)
- Green v. Derwinski, 1 Vet. App. 121 (1991) (standards for VA's duty to assist in obtaining evidence)