Citation Nr: 1311089 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 03-11 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU), prior to October 19, 2010. 2. Entitlement to a TDIU from October 19, 2010. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1964 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Hartford, Connecticut, Regional Office (RO) of the Department of Veterans Affairs (VA). In the September 2005 rating decision, the RO, in pertinent part, denied the Veteran's claim for a TDIU. In a May 2007 decision, the Board affirmed the denial of a TDIU. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2009 Memorandum Decision, the Court vacated the Board's May 2007 decision and remanded the matter to the Board for further proceedings consistent with the Court's decision. In December 2009, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing the requested action, the RO continued the denial of the claim (as reflected in a September 2010 supplemental statement of the case (SSOC)), and returned the matter to the Board for further appellate consideration. In December 2010, the Veteran's claim was remanded by the Board so that a videoconference hearing could be scheduled. In May 2011, the Veteran testified before the undersigned Acting Veterans Law Judge at a videoconference hearing; a transcript of that hearing is of record. In an August 2011 determination, the Board remanded the Veteran's claim of entitlement to a TDIU in order to afford him an examination to determine whether he was unemployable due to his service-connected disabilities. This examination was conducted in November 2012. Therefore, to the extent that the Veteran's claim is decided herein, the requisite directives contained in the Board's August 2011 determination have been complied with. Stegall v. West, 11 Vet. App. 268 (1998). While the issue before the Board in August 2011 was one for entitlement to TDIU throughout the appeal period, pursuant to this decision, the Board is dismissing the claim as it pertains to a specific time period. Therefore, the Board has separated the claim into the two issues set forth above. The Board has reviewed the Virtual VA claims file associated with this appeal. There is no relevant evidence contained in the Virtual file that is not also contained in the physical claims file. The issue of entitlement to a TDIU prior to October 19, 2010 is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's prostate cancer is rated at 100 percent, and his remaining service-connected disabilities have a combined disability rating of at least 60 percent, from October 19, 2010. 2. The Veteran is in receipt of special monthly compensation (SMC) under the criteria of 38 U.S.C.A. § 1114(s), from October 19, 2010. CONCLUSION OF LAW The 100 percent rating for prostate cancer, along with the ratings for the Veteran's other disabilities, renders moot the appeal for a TDIU from October 19, 2010. 38 U.S.C.A. §§ 1114(s), 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.350(i), 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given that entitlement to a TDIU from October 19, 2010 is dismissed as moot on a legal basis, further development under the VCAA or other law could not result in a favorable outcome or be of assistance to this inquiry. The Court has held that, in a case where the law is dispositive of the claim, the claim should be denied for lack of legal merit under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Court has also held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). II. Analysis VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). The Court has recently noted that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC ) under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that if a veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU rating independent of the other 100 percent disability rating). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has 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, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. In this case, the Veteran's service-connected disabilities are rated as follows: posttraumatic stress disorder (PTSD), rated 50 percent from October 4, 2000, 100 percent temporary total disability from October 14, 2008, 50 percent from December 1, 2008, and 70 percent from November 14, 2012; ischemia, rated 10 percent from November 30, 2007 and 30 percent from October 19, 2010; diabetes mellitus, rated 20 percent from October 12, 2007; and prostate cancer, rated 100 percent disabled from October 19, 2010. The combined disability ratings are 50 percent from October 4, 2000, 60 percent from October 12, 2007, 100 percent on a temporary total disability basis from October 14, 2008, 60 percent from December 1, 2008, and 100 percent from October 19, 2010. The Veteran has been awarded SMC under the provisions of 38 U.S.C.A. § 1114(s), effective October 19, 2010, on the basis that he is awarded a 100 percent rating for prostate cancer, along with a combined rating for all other service-connected disabilities that is at least 60 percent. The Veteran's prostate cancer is rated as 100 percent disabling from October 19, 2010. Thus, for SMC purposes, this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Because the Veteran has a single service-connected disability rated as total (i.e. his prostate cancer), and has additional service-connected disabilities (i.e. diabetes mellitus, ischemia, and PTSD) that are independently rated at more than 60 percent combined, the criteria for SMC at the housebound rate were met as of October 19, 2010. Entitlement to this benefit, effective October 19, 2010, was already granted by the RO in the August 2011 rating decision. The only possible increased benefit that could be assigned based upon a finding of entitlement to a TDIU when there is another disability rated at 100 percent disabled is already assigned to the Veteran from October 19, 2010. The Veteran's attorney argued in a January 2013 written statement that the Board should adjudicate and award TDIU from October 19, 2010 because the Veteran could be entitled to multiple awards under 38 U.S.C.A. § 1114(s). However, there is no statutory or regulatory basis for such an award, and the language of both 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) only states that entitlement to payment at a certain monetary rate is warranted when these criteria are met and does not provide an option for additional payment based upon the criteria being met in more than one way. The Veteran's attorney is essentially contending that the Veteran is entitled to payment of SMC under 38 U.S.C.A. § 1114(s) on two bases: (1) the 100 percent rating for his prostate cancer and the combined rating for his other disabilities (diabetes mellitus, ischemia, and PTSD) at a combined rating of at least 60 percent; and (2) the TDIU assigned on the basis of PTSD alone and the combined rating for his other disabilities (prostate cancer, diabetes mellitus, and ischemia) at a combined rating of at least 60 percent. The Veteran's attorney is merely arguing that the Veteran could be entitled to the same benefit in two different ways. There is no legal basis for assigning this SMC award more than once based upon the same disabilities. Therefore, since the TDIU rating is a lesser benefit than the 100 percent disability rating for prostate cancer, and the Veteran has already been awarded SMC under 38 U.S.C.A. § 1114(s), the only benefit for which the assignment of a TDIU from October 19, 2010 could be beneficial, the claim is moot for this time period. The appeal as to the TDIU issue is therefore dismissed. ORDER The appeal, as to the issue of entitlement to a TDIU, is dismissed as moot. REMAND The Board finds that a remand is necessary to address the issue of whether entitlement to a TDIU is warranted prior to October 19, 2010. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to October 19, 2010, the Veteran does not meet the schedular requirements for a TDIU. Nevertheless, it is VA's policy to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities. 38 C.F.R. § 4.16(b). Significantly, however, the Board has no power to award a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As such referral has not occurred in this case, the Board is precluded from granting a TDIU prior to October 19, 2010. While the Board does not have the power to award a TDIU on an extraschedular basis in the absence of a referral to VA's Director of Compensation and Pension Service, and there was no such referral in this case, the Board can, and will, consider whether a remand for such referral is warranted. In this case, the examiner that evaluated the Veteran in November 2012 found that he was unemployable due to PTSD. He did not provide a date on which this unemployability began. In an August 2005 VA examination report, the Veteran was found to have poor and limited employment opportunities due to physical and psychiatric disabilities, but this encompassed both service-connected and nonservice-connected disabilities. There is no other medical opinion of record that addresses whether the Veteran is unemployable due to his service-connected disabilities. Since there is no adequate opinion of record dated prior to November 2012 that addresses whether the Veteran is unemployable due solely to his service-connected disabilities, and the Court remanded the issue for this reason in May 2009, the Board finds that the RO should obtain a clarifying opinion addressing whether he was unemployable due to his service-connected disabilities prior to October 19, 2010 and then refer to the Director of Compensation and Pension Service the issue of whether the Veteran is entitled to TDIU on an extraschedular basis prior to October 19, 2010. Accordingly, the case is REMANDED for the following action: 1. Develop the claim of entitlement to a TDIU as necessary, to include affording the Veteran a medical opinion addressing whether it is at least as likely as not (50 percent or greater possibility) that his service-connected disabilities precluded him from securing and following substantially gainful employment prior to October 19, 2010. Development should also include referral to VA's Director of Compensation and Pension Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). 2. Readjudicate the issue of entitlement to a TDIU prior to October 19, 2010. If the claim is denied, the Veteran and his attorney must be provided a supplemental statement of the case before the claim is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ SONJA A. MISHALANIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs