Citation Nr: 1331313 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-28 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating for compensation on the basis of individual unemployability for the purposes of establishing entitlement to special monthly compensation at the housebound rate. REPRESENTATION Appellant represented by: Matthew Hill, Esq. ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran had active service from August 1997 to October 2006. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from February 2007, August 2007, and September 2009 RO decisions. The Board remanded the Veteran's appeal in April 2011 and July 2012. Review of the record reveals that the RO has substantially complied with the development directives of those remands. Accordingly, the Board finds that there has been substantial compliance with the directives of the April 2011 and July 2012 remands such that an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Prior to the most recent recertification of the Veteran's appeal, his attorney submitted additional evidence and argument for consideration, accompanied by a waiver of review by the RO. Accordingly, appellate adjudication may proceed. FINDINGS OF FACT 1. The evidence establishes that the Veteran's psychiatric disability alone renders him unable to secure or follow a substantially gainful occupation. 2. Separate from his psychiatric disability, the Veteran's additional service-connected disabilities have been independently ratable at 60 percent or more disabling since July 24, 2009. CONCLUSION OF LAW The criteria for special monthly compensation at the housebound rate, effective July 24, 2009, have been met. 38 U.S.C.A. §§ 1114(s), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.350 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to special monthly compensation pursuant to 38 U.S.C.A. § 1114(s). As such, no discussion of VA's duty to notify or assist is necessary. 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). 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 v. Peake, 22 Vet. App. 280, 294 (2008). Indeed, as noted in Bradley, VA must consider a total disability rating for compensation on the basis of individual unemployability (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. at 294; see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52,375 (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. The Court has held that although a TDIU may satisfy the rated-as-total element of section 1114(s), a 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. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In this case, the Board's July 2012 decision granted a 70 percent rating for the Veteran's generalized anxiety disorder effective October 18, 2006, the day after his separation from service. His remaining disabilities include irritable bowel syndrome rated 30 percent disabling effective October 18, 2006; cervical spine strain rated 0 percent disabling prior to July 24, 2009 and 30 percent disabling from that date; tinnitus rated 10 percent disabling effective October 18, 2006; hypertension rated 0 percent disabling prior to February 20, 2009, and 10 percent disabling from that date; thoracolumbar spine degenerative disease rated as 10 percent disabling from July 24, 2009, and several disabilities (right knee, left knee, left ear hearing loss, allergic rhinitis, and atopic dermatitis) each rated as 0 percent disabling from October 18, 2006. Using the table at 38 C.F.R. § 4.25, the disabilities other than his generalized anxiety disorder are rated a combined 40 percent from October 18, 2006, a combined 40 percent from February 20, 2009, and a combined 60 percent from July 24, 2009. Thus, entitlement to SMC at the housebound rate can be awarded if the evidence establishes that the Veteran's generalized anxiety disorder, alone, precludes him from securing and maintaining gainful employment as of that date. TDIU was initially awarded in the November 2010 rating decision based on both the Veteran's generalized anxiety disorder and his irritable bowel syndrome; the September 2011 rating decision also awarded an earlier effective date based on both of those disabilities. However, although the rating assigned for generalized anxiety disorder is less than 100 percent disabling, TDIU only requires that a disability preclude a claimant from securing and maintaining gainful employment. To that end, the record shows that TDIU is warranted based solely on the Veteran's generalized anxiety disorder beginning July 24, 2009. Evidence to support this finding includes an August 2009 opinion letter from Veteran's VA treating physician. This letter documented her belief that since October 2006, the manifestations of the Veteran's anxiety had resulted in him becoming increasingly housebound. She noted that he was unable to handle stress that could be expected in a work environment, and that his anxiety adversely affected his interactions with others. She found that he was intelligent, but socially crippled by his anxiety, and that his inability to travel to unfamiliar places or use public transportation likely made him unable to meet competitive employment standards. In sum, she concluded that the Veteran had a medically documented history of chronic mental disorder that had caused more than a minimal limitation of ability to do any basic work activity, to include a multi-year history of inability to function outside a highly supportive living environment, and a complete inability to function independently outside the area of his home. Similarly, two extensively detailed letters dated in February 2010 and March 2010, from Dr. Mangold, a private psychologist, concluded that the Veteran's generalized anxiety disorder had precluded him from being able to secure or maintain a substantially gainful occupation since at least May 2007. In support of this conclusion, Dr. Mangold cited the Veteran's panic attacks which had been so severe as to require visits to a hospital emergency room, as well as the significant dosages and dosage frequencies of anti-anxiety medications prescribed to him, and the fact that the anxiety resulted in insomnia which created chronic fatigue and impeded his ability to go to school. Finally, a July 2013 letter from the Veteran's VA treating psychologist determined that his anxiety disorders resulted in total social and occupational impairment, as they precluded social interaction and resulted in him being unable to handle or cope with routine daily stressors. It must be noted that a September 2009 VA treatment record indicated the clinician's finding that the Veteran was becoming increasingly isolated and was unable to work because of his anxiety and his diarrhea, a manifestation of his irritable bowel syndrome. Similarly, the February 2010 decision of the Social Security Administration (SSA) found that the Veteran had been disabled since October 18, 2006, due both to his psychiatric condition and his gastrointestinal condition. However, this evidence does not necessarily suggest that the Veteran is only precluded from gainful employment due to the combined effects of the two disabilities together. Especially in light of the other evidence discussed above, the Board finds that the Veteran's generalized anxiety disorder is sufficiently severe to preclude gainful employment, and that the gastrointestinal disability only increases the level to which gainful employment is precluded. The findings of these two pieces of evidence do not suggest that the Veteran's generalized anxiety disorder alone was insufficient to preclude gainful employment on its own. Thus, the Board finds as a whole that the evidence supports a finding of TDIU based solely on the Veteran's generalized anxiety disorder. In sum, while TDIU was originally awarded based on multiple service-connected disabilities, the evidence establishes that the Veteran's generalized anxiety disorder alone has precluded him from securing and maintaining gainful employment since at least July 24, 2009. Applying the ratings assigned to his remaining service-connected disabilities shows that he has at least a 60 percent combined rating as of July 24, 2009. Thus, the criteria for SMC at the housebound rate under 38 U.S.C.A. § 1114(s) are met as of that date. Accordingly, in light of the Court's decisions in Bradley and Buie, entitlement to SMC at the housebound rate under 38 U.S.C.A. § 1114(s) is warranted effective July 24, 2009. ORDER Entitlement to special monthly compensation at the housebound rate under 38 U.S.C.A. § 1114(s) is granted effective July 24, 2009, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs