Citation Nr: 1226846	
Decision Date: 08/03/12    Archive Date: 08/10/12

DOCKET NO.  09-37 338A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(s).


REPRESENTATION

Appellant represented by:	Matthew D. Hill, Esq.


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel


INTRODUCTION

The Veteran served on active duty from June 1978 to June 1982 and from December 1986 to December 1990.  
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The procedural history involving how the Veteran got to the present appeal is complicated and requires discussion.  In pertinent part, the Veteran filed a claim in January 2007 seeking entitlement to a total disability rating based on individual unemployability (TDIU) as well as ratings in excess of 40 percent for his service-connected deep vein thrombosis (DVT) of the left lower extremity with varicose vein insufficiency and DVT of the right lower extremity with varicose vein insufficiency, and a rating in excess of 10 percent for status post pulmonary embolism.  In a June 2007 rating decision, the RO denied the claim for TDIU, continued the 40 percent evaluations assigned for the DVT of the bilateral lower extremities, and assigned a 30 percent rating for status post pulmonary embolism effective January 8, 2007.  The Veteran submitted a notice of disagreement (NOD) in February 2008 and requested a hearing.

A hearing before a Decision Review Officer (DRO) was held in August 2009.  The transcript is of record.  An August 2009 DRO Conference Report summarizes what was decided at the hearing.  In pertinent part, it indicated that the DRO would grant entitlement to a TDIU and that the Veteran was withdrawing his claims for ratings in excess of 40 percent for DVT of the bilateral lower extremities.

The actions outlined in the August 2009 DRO Conference Report were effectuated in an August 2009 rating decision, which is the one currently on appeal as it pertains to SMC.  Along with granting entitlement to a TDIU, the August 2009 rating decision also assigned a rating of 60 percent for status post pulmonary embolism, effective June 22, 2005.  In the discussion pertaining to TDIU, the DRO noted that entitlement to SMC was not taken at issue because the Veteran did not meet the requirements.  The DRO also issued a statement of the case (SOC) in August 2009, which only adjudicated whether the Veteran was entitled to a rating in excess of 60 percent for status post pulmonary embolism.  

The Veteran then submitted a VA Form 9, which was received in October 2009.  He indicated that he wanted a videoconference hearing before the Board and that he was only appealing "failure to grant SMC S."  He asserted that SMC should have been granted due to the combined ratings of permanent and total individual unemployability and the 60 percent rating for pulmonary embolism.  

The VA Form 9 did not indicate that the Veteran intended to continue his appeal concerning entitlement to a rating in excess of 60 percent for status post pulmonary embolism adjudicated in the August 2009 rating decision and August 2009 SOC.  In a statement received in November 2009, it was noted that "the Veteran disagrees with the Rating Decision of August 18, 2009 solely in that it failed to grant the Veteran special monthly compensation.  He wishes to appeal this decision."  See VA Form 21-4138.  For these reasons, the Board finds that the Veteran did not perfect an appeal as to whether he was entitled to a rating in excess of 60 percent for status post pulmonary embolism and that this issue is not before it at this time.  He also withdrew his request for the videoconference hearing requested in his October 2009 VA Form 9.  See September 2010 statement in support of claim.  

As noted above, the August 2009 rating decision included discussion as to why SMC was not taken at issue, and the Veteran filed a VA Form 9 that was received in October 2009 in which he noted that he wanted to appeal the failure to grant SMC S.  The Veteran also filed a NOD, indicating that he disagreed with the August 2009 rating decision in that it failed to grant SMC.  See VA Form 21-4138 received November 2009.  The RO issued a SOC in August 2011 and an appeal was perfected the following month.  See September 2011 VA Form 9.  

The Veteran requested a videoconference hearing in his September 2011 VA Form 9, but subsequently withdrew that request.  See March 2012 statement in support of claim.  He submitted additional evidence that was received at the Board in April 2012, which was accompanied by a waiver of consideration by the agency of original jurisdiction (AOJ) and, therefore, can be considered in this decision.  See 38 C.F.R. § 20.1304.  

The issue of entitlement to service connection for chronic joint pain involving the knees, hips, and right elbow, as secondary to the medications taken for service-connected status post pulmonary embolism, has been raised by the record, see VA Forms 21-4138 received July 2009 and August 2009, but has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  The grant of entitlement to a TDIU was predicated solely on the Veteran's service-connected DVT of the left lower extremity with varicose vein insufficiency and DVT of the right lower extremity with varicose vein insufficiency.

2.  The regulations pertaining to TDIU establish that DVT of the left lower extremity with varicose vein insufficiency and DVT of the right lower extremity with varicose vein insufficiency are considered one disability.  

3.  The combined rating for DVT of the left lower extremity with varicose vein insufficiency and DVT of the right lower extremity with varicose vein insufficiency, including the bilateral factor, is 70 percent.  

4.  The Veteran has additional service-connected disability independently ratable at 60 percent, namely status post pulmonary embolism, which is separate and distinct and involves a different bodily system.  


CONCLUSION OF LAW

The criteria for entitlement to special monthly compensation under 38 U.S.C.A. § 1114 (s) have been met.  38 U.S.C.A. §§ 1114(s) (1), 5107 (West 2002); 38 C.F.R. § 3.350(i)(1) (2011). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board is granting entitlement to SMC under 38 U.S.C.A. § 1114 (s), which represents a complete grant of the benefit sought on appeal.  See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  Therefore, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. 

The special monthly compensation provided by 38 U.S.C.A. § 1114 (s) is payable where the Veteran has a single service-connected disability rated as total (100 percent) and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  See 38 U.S.C.A. § 1114(s) (West Supp. 2011); 38 C.F.R. § 3.350(i) (2011).

The Court of Appeals for Veterans Claims (Court) has interpreted 38 U.S.C.A. § 1114(s) to mean that the "total" disability rating does not have to be a 100 percent schedular rating.  The total rating requirement may be satisfied where a Veteran has been awarded a TDIU rating for a single disability.  See Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008).  The Bradley decision also held that the direction to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) was specifically limited to TDIU ratings.  A TDIU rating based on multiple service-connected disabilities does not satisfy the criteria of one total disability in considering entitlement to SMC under 38 U.S.C.A. § 1114(s).  Id. at 290-91.  The Court reiterated this interpretation with its holding in Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010) ("The Court today holds that a TDIU rating that is based on multiple disabilities cannot satisfy the section 1114(s) requirements of 'a service-connected disability' because that requirement must be met by a single disability"). 

The Veteran is currently service-connected for three disabilities, DVT of the left lower extremity with varicose vein insufficiency and DVT of the right lower extremity with varicose vein insufficiency, both rated as 40 percent disabling, and status post pulmonary embolism, rated as 60 percent disabling.  The Veteran does not have a single disability that is rated at 100 percent on a schedular basis.  Therefore, the question of a total rating on the basis of TDIU must be addressed.

Total disability is considered to exist when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1) (2011).  In general, total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation.  38 C.F.R. § 3.340(a)(2) (2011).

Generally, a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities with at least one disability rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2011).  

The crux of this case turns on whether there is a single service-connected disability that makes the Veteran unable to obtain and maintain substantially gainful employment.  See Bradley, Buie, supra.  In discussing whether the Veteran is entitled to SMC under 38 U.S.C.A. § 1114 (s), the RO indicated that TDIU was established based on several service-connected disabilities.  See e.g., August 2009 rating decision ("As the evidence shows that you are unemployable due to multiple service-connected disabilities, left lower extremity deep vein thrombosis and varicose veins insufficiency, and right lower extremity deep vein thrombosis and varicose veins insufficiency, it is not predicated upon a single disability...").  The Veteran counters that his service-connected DVT of the left lower extremity with varicose vein insufficiency and DVT of the right lower extremity with varicose vein insufficiency should be considered as one disability pursuant to the regulations that govern total disability ratings.  See e.g., August 2009 statement in support of claim.  

As cited to by the Veteran, 38 C.F.R. § 4.16(a) establishes that the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  

In the August 2009 rating decision in which entitlement to TDIU was established, the DRO noted on several occasions that the grant of entitlement to a TDIU was predicated solely on the Veteran's service-connected DVT of the left lower extremity with varicose vein insufficiency and DVT of the right lower extremity with varicose vein insufficiency.  More specifically, the DRO found "The evidence shows that you are likely unable to obtain and maintain gainful employment due to your bilateral lower extremity varicose veins and varicose veins insufficiency, therefore entitlement to individual unemployability is granted effective June 22, 2005."  This determination is further supported by the August 2009 DRO Conference Report, wherein the DRO noted that an agreed upon action was "Entitlement to individual unemployability is warranted based on deep vein thrombosis bilateral lower extremities."  

Service-connected DVT of the left lower extremity with varicose vein insufficiency and DVT of the right lower extremity with varicose vein insufficiency are rated under 38 C.F.R. § 4.104, which provides the Schedule of Ratings for the cardiovascular system.  The Board finds that these service-connected disabilities meet the regulatory criteria to be considered as one disability, as they are disabilities of both lower extremities, including the bilateral factor; are disabilities resulting from common etiology, namely deep vein thrombosis; and are disabilities affecting a single body system, namely the cardiovascular system.  See 38 C.F.R. § 4.16(a) (1) (2) (3) (2011).  Therefore, there is a single service-connected disability that makes the Veteran unable to obtain and maintain substantially gainful employment.  The Board combined rating for this single service-connected disability, including the bilateral factor, is 70 percent.  See 38 C.F.R. §§ 4.25, 4.26 (40 percent combined with 40 percent results in 64, which is rounded down to 60 and then up to 70 percent when the bilateral factor is applied).  The same conclusion was made in the August 2009 rating decision.  

In light of this determination, the Veteran satisfies the necessary criteria for a total rating.  See 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.50(i).  It is clear that he also has the requisite additional disability independently rated at the 60 percent level, namely the service-connected status post pulmonary embolism, which is separate and distinct and involves a different bodily system (the respiratory system).  Accordingly, entitlement to SMC under 38 U.S.C.A. § 1114(s)(1) is established.  See also 38 C.F.R. § 3.50(i) (1).  


ORDER

Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(s) is granted, subject to the law and regulations government payment of monetary benefits.



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs