Citation Nr: 1334598 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-19 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to special monthly compensation (SMC) from March 21, 2008. REPRESENTATION Appellant represented by: Veterans of Foreign Wars ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision rendered by the Wichita, Kansas Regional Office (RO) of the Department of Veterans Affairs (VA). [A decision on a claim for an effective date prior to February 18, 1999, for the grant of service connection for post-traumatic stress disorder is the subject of a separate decision.] FINDINGS OF FACT 1. For the period from March 21, 2008, to February 15, 2012, the Veteran is in receipt of a TDIU rating based on his service-connected disabilities. 2. For the period from March 21, 2008, to February 15, 2012, he does not have a single service-connected disability rated as 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent. 3. Since February 15, 2012, the Veteran is in receipt of a 100 percent schedular rating for PTSD with secondary cannabis abuse, but does not have 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. 4. Since February 15, 2012, the Veteran is not permanently housebound by reason of service-connected disability of disabilities. CONCLUSION OF LAW The criteria for special monthly compensation are not met. 38 U.S.C.A. §§ 1114, 5103A, 5107 (West 2002); 38 C.F.R. § 3.350 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background and Analysis A. Eligibility for SMC from March 21, 2008, to February 15, 2012 Under 38 U.S.C.A. § 1114(s), special monthly compensation (SMC) is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is 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) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. 1114(s). In a May 2008 decision, the RO granted service connection for post-traumatic stress disorder and assigned a 70 percent evaluation, effective February 18, 1999. (Later, the RO included symptoms of alcohol and cannabis dependence, major depressive disorder and cocaine abuse in the 70 percent evaluation.) In addition, it granted service connection for cervical spine degenerative disk disease and assigned a 10 percent evaluation, effective October 26, 1999, and a 30 percent evaluation, effective March 21, 2008. It also granted service connection for left upper extremity radiculopathy, and assigned a 20 percent evaluation, effective October 26, 1999, right shoulder degenerative joint disease, with a 10 percent evaluation, effective October 26, 1999, and left shoulder degenerative joint disease, with a 10 percent evaluation, effective October 26, 1999. In doing so, the RO conceded that the Veteran "engaged in combat with the enemy." In turn, it applied 38 U.S.C.A. § 1154(b) and found that the Veteran sustained injuries during service when his jeep overturned after hitting a landmine. It linked the current orthopedic disabilities to the jeep accident. In November 2008 correspondence, the Veteran's attorney argued that the Veteran's service-connected PTSD and orthopedic disabilities made it "impossible for him to obtain and maintain substantially gainful employment." Thereafter, in an October 2009 decision, a VA decision review officer granted entitlement to individual unemployability (TDIU), effective August 1, 1999. In granting the claim, the decision review officer determined PTSD was "one of the reasons for your unemployment." It further determined that the Veteran was employed until mid-1999 and even though he was awarded service connection for PTSD, effective from February 19, 1999, he continued working "until the combination of your PTSD, left arm and upper (cervical) spine conditions became too symptomatic to continue employment." VA's duty to maximize benefits requires it to assess all of a claimant's service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation under 38 U.S.C.A. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Special monthly compensation under 38 U.S.C.A. § 1114(s) is available when a Veteran has a service-connected disability rated as total and has additional service-connected disability or disabilities ratable at 60 percent or more. 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. Peake, 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."). Here, it is apparent that the assignment of TDIU in the October 2009 decision was based on multiple service-connected disabilities. Thus, while the decision discusses the significant impact of PTSD on the Veteran's ability to work, it specifically considered the additional affect on employment caused by his other service-connected disabilities. In granting the claim, it discussed the "combination" of service-connected disabilities impacting his ability to secure or follow a substantially gainful occupation. As such, it cannot be said that the award of TDIU was based solely on one disability. Thus, the TDIU rating cannot serve as a total rating for purposes of SMC. As such, he does not have one disability rated as total for purposes of SMC. The Court in Bradley was clear on this point. It held: Hence, although a total disability rating for individual unemployability may satisfy the "rated as total" element of section 1114(s), the Court today holds that a total disability rating based on individual unemployability that is 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. Bradley at 250. Moreover, even if the Board were to conclude that TDIU was granted solely for PTSD; entitlement to SMC still requires additional disability ratable at 60 percent or more. Here, none of the service-connected orthopedic disabilities are rated at 60 percent or higher. While the Board has considered the Veteran's contention that the multiple orthopedic disabilities all arose from a common injury during service; there is no provision under the law governing SMC which permits consideration of such as constituting "additional service-connected disability or disabilities independently ratable as 60 percent disabling." Compare 38 C.F.R. § 3.350 (2012) and 38 C.F.R. § 4.16 (2012). In addition, the Court in Bradley held that the direction to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) was specifically limited to TDIU ratings. The Court in Bradley did impose an additional analytical step; that is, to assess all of the disabilities despite the order in which they were service-connected, to determine if the criteria for SMC are met. In this respect, the Court held: [t]he Court holds that the order in which disabilities are service connected is not relevant to VA's determination of a claimant's eligibility for special monthly compensation under section 1114(s). Whenever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA's duty to maximize benefits requires VA to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s). Id. at 251. Here, the order the disabilities were service-connected does not change the determination regarding entitlement to SMC because all were service-connected in the same May 2008 decision. While different effective dates were assigned, no combination of the service-connected disabilities at that time would establish entitlement to SMC because none were rated at totally disabling. It was not until the October 2009 decision, that granted entitlement to individual unemployability was granted, that the requirement of a total disability were met. B. Eligibility for SMC Since February 15, 2012 Since February 15, 2012, the Veteran is in receipt of a 100 percent schedular disability evaluation for PTSD with secondary cannabis abuse. Thus, for SMC purposes, he has a single service-connected disability rated as 100 percent. He does not, however, have additional service-connected disability or disabilities independently ratable at 60 percent. Rather, he is service-connected for cervical spine degenerative disk disease, rated as 30 percent disabling, left upper extremity radiculopathy, rated as 20 percent disabling, left shoulder degenerative joint disease, rated as 10 percent disabling, and right shoulder degenerative joint disease, rated as 10 percent disabling. TDIU was only effective to February 15, 2012. Thus, the most severe of the service-connected disabilities, other than PTSD, is rated as 30 percent disabling. In addition, the evidence does not show that he is permanently housebound by reason of service-connected disability or disabilities. For instance, during VA treatment in March 2012, a nurse practitioner stated that that he was not confined to bed or required a wheelchair. In addition, he did not require assistance for changing positions in bed or in a chair. During a PTSD examination that same month, he described leaving his house during the course of the day. He reported that he went to Meals on Wheels for lunch, went out to play chess, checkers, and bingo, and took his dog for rides in the car. The examination also revealed that he drove a car to the appointment. Thus, entitlement to SMC for the period since February 15, 2012, cannot be granted and the claim must be denied. II. Other Considerations VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran is seeking entitlement to SMC under the provisions of 38 U.S.C. § 1114. This is a downstream issue stemming from the Veteran's previously-decided claim granting entitlement to a TDIU. As it is a downstream issue, it is clear that service connection has been granted and an initial disability rating and effective date have been assigned. Thus the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In addition, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). ORDER Entitlement to SMC is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs