Citation Nr: 0935536 Decision Date: 09/21/09 Archive Date: 10/02/09 DOCKET NO. 09-26 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to special monthly compensation (SMC) based on having one disability rated as 100 percent disabling and additional disability or disabilities independently rated as at least 60 percent disabling. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD Joseph R. Keselyak, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. FINDING OF FACT The Veteran has a single service-connected disability rated as 100 percent disabling and additional disabilities independently rated as at least 60 percent disabling. CONCLUSION OF LAW The criteria for SMC based on having one disability rated as 100 percent disabling and an additional disability or disabilities independently rated as at least 60 percent disabling are met. 38 U.S.C.A. § 1114(s)(1) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.350(i) (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the decision below, no discussion regarding VA's notice and assistance requirements is necessary in the present case. With regard to the Attorney's contention as to the effective date of SMC, the effective date will be assigned by the RO on return of the case to it. If the Veteran disagrees with the assigned date, he may appeal the determination. Resolution of this claim depends solely on the interpretation of law and application to undisputed facts, i.e. the Veteran's disability evaluations and their relationship to the legal requirements for substantiating his SMC claim based upon having one disability rated as 100 percent disabling and additional disability or disabilities independently rated as at least 60 percent disabling. In this regard the Board notes that the Veteran and his Attorney have not asserted that the Veteran requires aid and attendance or that he is permanently housebound by reason of his service-connected disabilities or that he is permanently housebound for any reason. Indeed, the Veteran's Attorney has solely argued that the Veteran is entitled to SMC based upon having one disability rated as 100 percent disabling and additional disability or disabilities independently rated as at least 60 percent disabling. See July 2, 2009, letter from Attorney Carpenter. Moreover, a review of the record does not indicate that the Veteran is permanently housebound. See e.g. VA medical records dated from September 2007 to March 2008. Accordingly, the Board need not consider entitlement to SMC on this basis. See Robinson v. Shinseki, 557 F.3d 1355 (Fed Cir. 2009). The Veteran is seeking entitlement to SMC based upon having a single service-connected disability rated at 100 percent and an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C.A. § 1114(s)(1) (West 2002 & Supp. 2009); 38 C.F.R. § 3.350(i) (2008). A review of the record does not indicate that the Veteran has any one disability rated as 100 percent disabling on a schedular basis, but the record does disclose that he was in receipt of a total disability evaluation based on individual unemployability (TDIU) from December 2000, and the Board concludes that the TDIU was based on his service-connected posttraumatic stress disorder (PTSD) evaluated as 70 percent disabling. The claims folder is a rebuilt folder but a 2005 rating action suggests that the only service connected disabilities in 2000 were PTSD rated 70 percent and three disabilities rated as noncompensable. Accordingly, the TDIU is considered to be based on PTSD alone. The United States Court of Appeals for Veterans Claims held in Bradley v. Peake, 22 Vet. App. 280 (2008) that for purposes of special monthly compensation the statute did not limit a service-connected disability rated as total to only a schedular 100 percent rating and the regulation permitted a TDIU rating based on a single disability to satisfy the statutory requirements of a total rating. Thus, in this case, PTSD is considered a single service-connected disability rated at 100 percent. The Veteran is also service connected for hearing loss, rated at 30 percent; diabetes mellitus, rated at 20 percent; diabetic neuropathy of the left upper extremity, rated at 20 percent; diabetic neuropathy of the right upper extremity, rated at 20 percent; diabetic neuropathy of the left lower extremity, rated at 20 percent; diabetic neuropathy of the right lower extremity, rated at 20 percent; tinnitus, rated at 10 percent; hypertension, rated at 10 percent; and malaria and shell fragment wound residuals, each rated at 0 percent. He has multiple disabilities rated in combination at 60 percent or higher separate from his PTSD, and, therefore, the Board agrees with the Veteran's Attorney that the Veteran meets the criteria for special monthly compensation under 38 U.S.C.A. § 1114(s)(1). The Board notes that the TDIU rating was discontinued effective April 8, 2003, the date that the Veteran's combined disability rating increased to 100 percent schedularly. Therefore, the Veteran currently does not have a TDIU. However, the Board finds that to deny this claim on the basis that the Veteran no longer has a disability rated as totally disabling under 38 C.F.R. § 4.16 would lead to an absurd result, that result being that he would be entitled to a higher special monthly compensation rating, as explained above, so long as his combined rating remained at 90 percent or less, but would not be entitled to a higher compensation rating even though one disability still renders him unemployable and other disabilities have worsened such that a 100 percent combined schedular rating results. The Board does not believe that the Bradley decision and/or the statute intended such an absurd result and finds that the Veteran has a single service-connected disability ratable as totally disabling based on individual unemployability and additional disabilities separately ratable at 60 percent. ORDER Entitlement to SMC based on having one disability rated as 100 percent disabling and additional disability or disabilities independently rated as at least 60 percent disabling is granted. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs