Citation Nr: 1647288 Decision Date: 12/19/16 Archive Date: 12/30/16 DOCKET NO. 97-32 161A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). Entitlement to special monthly compensation (SMC) at the housebound rate. REPRESENTATION Veteran represented by: Mark R. Lippman, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran had active service from November 1980 to November 1984. This matter has a long history, with nearly twenty years in appellate status. It comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision of the Montgomery, Alabama Regional Office (RO). The rating decision denied service connection for a chronic back disorder and an increased rating for the Veteran's hemorrhoids. The Veteran appealed. In August 2001, the Board remanded the Veteran's claims to the Montgomery, Alabama RO for additional action. In April 2002, the Montgomery RO, in pertinent part, re-characterized the Veteran's right inguinal hernia disability as right inguinal hernia repair residuals rated as 10 percent disabling. In July 2002, the RO denied service connection for the loss of use of a creative organ. Thereafter, the Veteran moved to Georgia. Accordingly, VA transferred the claims file to the Atlanta, Georgia RO. In August 2004, the RO re-characterized the Veteran's inguinal hernia disabilities as post-operative bilateral inguinal hernia repair residuals; assigned a 40 percent evaluation for that disability; and effectuated the award as of April 1, 1996. In January 2005, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is of record and has been reviewed. In April 2005, the Board denied both service connection for a back disorder and the loss of use of a creative organ, as well as denying increased evaluations for the Veteran's post-operative bilateral inguinal hernia repair residuals and hemorrhoids. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2007, the Court set aside the April 2005 Board decision and remanded the appeal to the Board for additional action. In December 2007 and December 2008, the Board remanded the Veteran's appeal to the RO for remedial action. In November 2009, the Board remanded the claim for entitlement to a TDIU based on the holding of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). That is, the Board noted that the Veteran raised a claim for individual unemployability as part of the claims for increased ratings, and it was directed that he be provided notice as to how to substantiate a claim for a TDIU. In addition to this remand, the November 2009 Board decision denied claims for entitlement to service connection for a chronic back disorder and sterility/loss of use of a creative organ. Additionally, increased ratings for service-connected hemorrhoids and bilateral inguinal hernias were denied, and a separate 10 percent evaluation was established for painful inguinal hernia scars. In June 2011, the Board remanded the claim for entitlement to a TDIU for further development. The Board requested that the Veteran be scheduled for a VA examination to determine if the service-connected bilateral post-operative hernias, hernia scars, and hemorrhoids, individually or in combination with each other, prevented the Veteran from engaging in any type of substantially gainful employment. The examination was held in December 2011 and an opinion was obtained. In December 2013, the claim returned to the Board. The Board denied a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2014 Joint Motion for Remand (JMR), the parties moved the Court for a remand of the decision to the Board. Upon return of the appeal to the Board, the Veteran requested a three-way hearing between himself, his representative, and a Veterans Law Judge. VA scheduled such a hearing to be held in April 2015. However, neither the Veteran nor his attorney appeared. This was fully discussed in the Board's Remand of June 2015. He has had over a year since the last Remand to present evidence of good cause for his failure to appear for the hearing, but has not done so. Since the Veteran failed to appear, the Board deemed the Veteran to have withdrawn his request for hearing. The Board remanded the matter again in June 2015, to allow inextricably intertwined claims to be adjudicated. This has been fully accomplished, and the Veteran's appeal is once again before the Board. While the Remand was pending, in a January 2016 decision, the RO granted service connection for schizoaffective disorder, to include depression. A 100 percent disability rating was assigned effective as of December 20, 2013. The Veteran has not challenged the effective date assigned. We observe that he has until January 28, 2017, to do so. FINDINGS OF FACT 1. At no point during the appeal period, did the Veteran's service-connected bilateral post-operative hernias, hernia scars, and/or hemorrhoids, individually or in combination with each other, and in the context of his educational background and work history, cause him to be unable to retain or maintain employment. 2. Effective as of December 20, 2013, the Veteran has a single disability rated as 100 percent disabling, but he has no other disability rated at 60 percent, nor is he substantially confined to his dwelling by his service-connected disabilities. CONCLUSIONS OF LAW 1. A TDIU based upon the Veteran's service-connected bilateral post-operative hernias, hernia scars, and/or hemorrhoids is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2015). 2. The criteria for SMC have not been met. 38 U.S.C.A. §§ 1114, 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.350(h)(3)(i)(1)(2) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied prior to the initial RO decisions involving these claims in multiple letters to the Veteran over the years that informed him of his own and VA's duties for obtaining evidence. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Pursuant to the Board's remand, he was provided notice as to how to substantiate a specific claim for TDIU in a February 2010 letter. During the January 2005 hearing on appeal, the Veteran was given the opportunity under oath to express his contentions. Additional sources of evidence which might support his appeal were explored and discussed. See Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records and all post-service medical records identified by the Veteran have been obtained for review. One of the criticisms both parties to the case made in the August 2014 Joint Motion for Remand was that the Board had not fully explained why the prior examinations for purposes of compensation were adequate to decide the appeal. To address these concerns, the Board ordered another VA examination pertaining to the Veteran's hernia residuals. This examination was accomplished in April 2015, by a physician with expertise in such disabilities, who reviewed the Veteran's medical records, and performed a clinical examination. An adequate medical opinion must be "accurate and fully descriptive . . . ,with emphasis upon the limitation of activity imposed by the disabling condition." 38 C.F.R. § 4.1. It must be based on an accurate factual premise and on a consideration of the veteran's prior medical history and examinations. Ardison v. Brown, 6 Vet.App. 405, 407 (1994); Reonal v. Brown, 5 Vet.App. 458, 461 (1993); see Floyd v. Brown, 9 Vet.App. 88, 93 (1996). In addition, the medical opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008); see also Hicks v. Brown, 8 Vet.App. 417, 421 (1995) (explaining that an inadequate medical evaluation frustrates judicial review). Perhaps most importantly, examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The April 2015 opinion was based on review of the claims file, including the Veteran's statements, and provided a rationale for the opinion provided. Based upon this analysis and for the reasons discussed in more detail below, the Board holds that the April 2015 examination report accomplishes all of these goals when viewed in conjunction with the rest of the relevant evidence of record. Although the Veteran presented sworn testimony during the January 2005 hearing on appeal, his attorney requested another hearing in October 2014. The Board promptly remanded the case in November 2014 to provide for such a hearing. A three-way hearing was scheduled for April 2015, where the Veteran would appear at his local RO, his attorney would appear at his local RO, and both could communicate with a Veterans Law Judge in Washington DC. See hearing notification letter dated March 13, 2015. The Veteran's attorney clearly received notice of the hearing as he responded via a March 24, 2015, letter that he had received notification of the hearing and reminding the RO that it was to be a three-way video conference. However, both the Veteran and his attorney failed to show for the scheduled hearing. No showing of good cause has been attempted. In the Board's prior Remand of June 2015, the above facts were discussed. In August 2015, the Veteran's attorney again requested a hearing, stating one had never been scheduled since his 2014 request. This is clearly incorrect. The attorney did not acknowledge the prior scheduled hearing, which he clearly received notice of based on his own March 24, 2015, correspondence. He also failed to acknowledge the Board's discussion of his failure to show good cause for not appearing in the prior June 2015 remand. The fact that a three-way hearing was scheduled for April 2015 and the fact that the Veteran and his attorney both failed to show for the hearing is documented in VA's Veterans Appeals Control and Locator System (VACOLS). The Veteran was provided a hearing before the undersigned Veterans Law Judge in 2005, and he and his attorney were properly notified of the attempt to schedule a three-way video conference hearing in 2015. The Board finds that all necessary development as to the issues decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to develop evidence is required. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board has thoroughly reviewed all the evidence in the Veteran's electronic VA files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body 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), 4.15. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). However, TDIU may still be warranted even if the Veteran does not meet the criteria for a schedular entitlement, when the evidence of record demonstrates that he is unable to secure or follow substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16 (b). In such a case, however, entitlement to an extraschedular TDIU would require the Board to first determine whether referral to the Director of Compensation is warranted. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a Veteran's employability, consideration should be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In terms of his background, records from the Social Security Administration reflect that the Veteran is a high school graduate who has worked as a commercial cleaner throughout his post-service employment history. He last worked in May 2002. Service connection has been granted for residuals of left and right inguinal hernia surgery, painful scars related to the hernia surgery, hemorrhoids and erectile dysfunction. The surgery residuals were rated as 40 percent disabling from April 1996 through March 2015, when the rating was reduced to 10 percent. Temporary total disability ratings were assigned under the provisions of 38 C.F.R. § 4.30 for convalescence following surgery in October 1995, February 1996, and January 2002. The scar residuals were separately rated as 10 percent disabling from February 2009, but were reduced to zero percent in October 2014. Hemorrhoids and erectile dysfunction have been rated as noncompensable (zero percent) throughout the appeal period. As noted above, service connection for schizoaffective disorder was recently granted, effective in December 2013. A 100 percent schedular rating has thus been in effect since December 2013. Service connection for bilateral inguinal hernias has been in effect since November 1984. A January 1996 VA examination reported the Veteran was post-operative right inguinal hernia repair from October 1995, which was reported with a good snug repair, but he had recurrence of a left inguinal hernia. On examination, the external ring was large and when he coughed, a 2x3 centimeter bulge manifested into the canal, which was not incarcerated or strangulated and that was capable of being easily reduced. He underwent a repair on the left in the following month. Pursuant to a July 1996 rating, the Veteran was afforded a temporary total rating from October 24, 1995 to December 1, 1995, with a 10 percent evaluation on the right thereafter; he was awarded an additional period for convalescence from February 1996 to April 1, 1996 for the surgery on the left, with a 20 percent rating assigned thereafter. In January 2002, a recurrent right inguinal hernia was again repaired surgically. The hernia was reduced, and he was returned to recovery in stable condition. No complications were reported. Another temporary total evaluation was assigned based on surgical treatment necessitating convalescence. Surgery notes show that the Veteran was told that he could return to work post-surgery in February 2002. In November 2003, the Veteran was afforded another VA examination, which reported bilateral hernia repairs without the recurrent presence of hernias and no need for support mechanisms. There were no ventral hernias and no malignancies. As noted above, prior to August 2004, separate ratings had been assigned for left and right bilateral inguinal hernia repair, resulting in a combined 30 percent evaluation. The combined evaluation was increased to 40 percent retroactively to April 1, 1996, pursuant to an August 2004 rating. Pursuant to a 2005 Social Security determination that the Veteran is disabled from employment, a physical residual capacity assessment specific to the Veteran's inguinal hernia surgery residuals was accomplished. The physician, who is a State medical consultant, opined that the Veteran was capable of medium work and that his reported symptoms and their alleged effect on functioning was not supported by the medical evidence. During the Social Security hearing, the Veteran testified that his medications made him drowsy, that his back pain requires him to lie down three to four hours a day, and that he cannot climb stairs due to his breathing problems. He stated as well that his balance is impaired and that he has a poor ability to maintain attention and concentration due to the side effects of medication and persistent pain. The Social Security Judge found the Veteran's testimony to be credible, and the Board has no reason to dispute his credibility. VA examinations in May 2008 and February 2009 also yielded diagnoses of bilateral hernia repairs without recurrent hernias and no need for support mechanisms. Again, there were no ventral hernias and no malignancies. A July 2014 VA examination report reflects that the Veteran reported occasional lower abdominal pain related to his hernia surgery residuals. Upon clinical examination, however, no current hernias were detected. There was no need for a truss or a belt for support. The surgical scars were not painful or unstable. The examiner specified that there were no post-surgical inguinal hernia complications on either side. Review of recent VA treatment reports reflects that the Veteran continues to complain of pain in the area of his prior surgeries. He takes Lortab as needed for such pain, although he complains that it does not help. He also takes significant narcotic medication for the relief of arthritis pain. In December 2014, the RO reduced the disability rating assigned to the hernia residuals from 40 percent to 10 percent, effective in March 2015, finding that the disabilities had improved, and no longer met the criteria for higher disability ratings. The RO also reduced the disability rating assigned to the scar residuals from 10 percent to zero percent, effective in October 2014. Thus, the right hernia residuals are now rated as 10 percent disabling, and the left hernia residuals are separately rated as 10 percent disabling. The Veteran disagreed with the rating reductions in March 2015 and the RO issued a Statement of the case in January 2016. The Veteran failed to file a timely substantive appeal, however, so these ratings are now final. Pursuant to the Board remand, in April 2015, the Veteran underwent a VA examination to identify all impairment related to his hernia disabilities. Following a clinical examination and review of the Veteran's medical history, the examiner opined that the Veteran's hernia disabilities would not impact upon his ability to work. The following findings and explanation were provided. There are no post-surgical inguinal hernia complications on the right side. There are no post-surgical inguinal hernia complications on the left side. The length and width of the scar is 9 cm x 0.5 cm on both inguinal areas. For the VA established diagnosis of STATUS POST BILATERAL INGUINAL HERNIA REPAIR TIMES TWO, there is no change in the diagnosis. At this time the claimant's condition is quiescent. The examiner did not specifically comment about the effect that any pain medication the Veteran may be taking for hernia pain has upon his employability. However, the examiner determined that there are no post-surgical complications on either side, and that the Veteran's condition is "quiescent." Under these circumstances, with no current complications and an absence of active symptomatology, the examiner's conclusion is entirely reasonable. As the examiner indicated review of the relevant medical evidence, we can assume that the examiner was aware of the Veteran's medications and factored this information into the conclusion that the Veteran's hernias do not render him unemployable. Furthermore, the examiner is presumed to be qualified in this matter, and the Veteran has not attempted to show otherwise. "VA benefits [from] a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case." Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Part of that presumption "is that the person selected by . . . VA is qualified by training, education, or experience in the particular field." Id.; see 38 C.F.R. § 3.159(a)(1) (defining "competent medical evidence" for VA purposes as "evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions"). The Board deems this examination report to represent the best evidence as to the impact of the Veteran's hernias upon his employability. This examination was obtained to cure the concerns expressed by the parties in the August 2014 Joint Motion for Remand. We note that the conclusions reached by the examiner are entirely congruent with the conclusions reached by VA examiners in 2003, 2008, 2009, and 2014. That is, the 2015 opinion is not viewed in isolation here. The Board has done a longitudinal review of the record, and the 2015 opinion is entirely consistent with prior medical opinions. Those are, to reiterate: * Surgery notes show that the Veteran was told that he could return to work post-surgery in February 2002. * November 2003 examination showing bilateral hernia repairs without the recurrent presence of hernias and no need for support mechanisms. * VA examinations in May 2008 and February 2009 also yielded diagnoses of bilateral hernia repairs without recurrent hernias and no need for support mechanisms. * VA examination in 2014 where no current hernias were detected, there was no need for a truss or a belt for support, and the examiner specified that there were no post-surgical inguinal hernia complications on either side. Within the context of the Veteran's education and work experience, the Board finds that his ability to engage in essentially janitorial work could not be significantly impeded by a situation which is deemed "quiescent." While these conditions may affect his physical abilities, those limitations simply does not rise to the level of inability to obtain or retain employment. Again, the medical evidence shows that there are no remaining post-surgical complications. The authors of the joint motion for remand focused upon conclusions made by the Social Security Administrative Law Judge that his complaints of constant pain would have a moderate effect upon his activities of daily living and his ability to engage in strenuous physical labor as well as sedentary labor. Careful review of the Social Security decision convinces the Board that the author of that decision was not limiting that holding only to hernia surgery residuals and hemorrhoids. Rather, reading the entire paragraph in context shows that Social Security was concerned with all of the Veteran's disabilities-not only with his service-connected disabilities, which is the sole purview of our review. The record shows that the Veteran takes pain medication for multiple complaints, most of which are not service-connected. Additionally, the Social Security Judge considered the Veteran's respiratory disorder which also contributes to his inability to engage in physical activity. His respiratory disorder is not service-connected either. With regard to the Social Security Judge's comment that the Veteran may be precluded from sedentary labor, again, interpreting this comment in the context of all the evidence gathered by Social Security, this comment is most reasonable when viewed in light of the Veteran's testimony that his medications made him drowsy and he had difficulty concentrating. Again, however, this conclusion was based upon a review of all the Veteran's disabilities, not solely his service-connected ones. Because the VA has a different standard than the Social Security Administration in evaluating the causes of unemployability, the conclusions of that agency must be viewed in this context and we find that parsing the conclusions reached in that context to serve the VA's needs is an exercise which likely led the authors of the joint motion astray in their understanding of the Veteran's overall situation. The Board holds that the preponderance of the evidence is against the award of a TDIU. At no point prior to the grant of service connection for schizoaffective disorder did the Veteran meet the schedular criteria for the award of a TDIU. 38 C.F.R. § 4.16(a). Since he has not challenged that effective date, at this point in time, the Board must consider the state of the case as it exists now. Other than during convalescence from surgery, his highest combined disability rating prior to December 2013, was that of 50 percent. Thus, he did not meet the schedular requirements set forth at 38 C.F.R. § 4.16(a). We also hold that the evidence of record does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his non-psychiatric service-connected disabilities, at any point throughout the appeal period. 38 C.F.R. § 4.16(b). That he is unemployable is amply demonstrated in the evidence of record, and has been recognized by Social Security. However, the question at issue here is whether he is unemployable due solely to the service-connected disabilities. The preponderance of the evidence is against this claim, as the evidence simply does not show that residuals of left and right inguinal hernia surgery, painful scars related to the hernia surgery, hemorrhoids and erectile dysfunction, whether considered separately or together, render him unable to secure or follow substantially gainful occupation due to his service-connected disabilities, under the provisions of 38 C.F.R. § 4.16 (b). The Board therefore holds that a referral to the Director of Compensation is not warranted in this case, and was not warranted at any point during this lengthy appeal period. SMC Historically, VA would treat the pending TDIU issue as moot from the date as of which the Veteran has been assigned a total schedular rating. VA's General Counsel had issued a precedent opinion holding that receipt of a 100 percent scheduler rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See VA O.G.C. Prec. Op. No. 6-99. However, that opinion was withdrawn following the Court's holding in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). In other words, a TDIU claim will not automatically be mooted, but rather the Board must consider the specific facts of the case. Special monthly compensation is payable at a specified rate if a veteran under 38 U.S.C.A. § 1114(s) when a 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 or more, 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. 38 C.F.R. § 3.350(i). This requirement is met when the Veteran is substantially confined as a 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 reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350 (h). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating). Additionally, a total disability rating based on individual unemployability (TDIU) may meet the criterion, but only if assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). Bradley and Buie arose out of a concern from the Court that a veteran could possibly be entitled to special monthly compensation if he had a single service connected disability rated as total and another disability or disabilities combining to total at least 60 percent. The issue of entitlement to SMC has not been raised or adjudicated. However, such a rating is inherently part of an appealed rating claim where the criteria are raised. With regard to the permanently housebound requirement, this is met where a veteran is substantially confined as a direct result of a service-connected disability to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinic areas, and it is reasonably certain that the disability or disabilities and resulting confinement will continue throughout his or her lifetime. Id. In this case, the Veteran has been awarded a 100 percent disability rating for his psychiatric disorder. His other service-connected disabilities combine to a 20 percent disability rating under the formula provided in 38 C.F.R. § 4.25. Although his other service-connected disabilities were previously rated higher, with a combined rating of 40 percent, even using this figure does not equate to a schedular TDIU, as explained in detail above. Thus, the potential for SMC discussed in Bradley and Buie does not apply and consideration of TDIU would result in no additional discernable benefit to the Veteran at any point after the effective date of the 100 percent disability rating. We also observe that there is no indication the Veteran is substantially confined as a direct result of a service-connected disability to his or her dwelling, and there is no indication that he has been institutionalized. ORDER A total disability rating based upon individual unemployability due to service-connected disabilities is denied. Special monthly compensation is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs