Citation Nr: 1612688 Decision Date: 03/29/16 Archive Date: 04/07/16 DOCKET NO. 12-07 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether partial vacatur of the February 9, 2016 Board of Veterans' Appeals decision is warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Entitlement to special monthly compensation (SMC) at the housebound (s-1) rate. REPRESENTATION Veteran represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty from November 1987 to November 1993, to include active service in the Southwest Asia theater of operations during the Persian Gulf War. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Wichita, Kansas. In September 2013, the Veteran testified at a Travel Board hearing at the VA RO in North Little Rock, Arkansas, before the undersigned Veterans Law Judge, and a transcript has been associated with the electronic record. On February 9, 2016, the Board issued a decision that, in part, awarded the Veteran a TDIU and SMC at the housebound (s-1) rate. For reasons discussed below, the Board is vacating its February 9, 2016 decision with respect to these issues only. The Board will also reissue a decision herein, allowing both benefits. The Board wishes to make clear that its February 9, 2016 decisions to (1) award an initial 70 percent rating, but no higher, from June 4, 2009 to June 2, 2015 for adjustment disorder with depressed mood; (2) deny entitlement to an initial disability rating in excess of 70 percent for adjustment disorder with depressed mood from June 3, 2015; (3) remand the Veteran's service-connection claim for a neurological disorder, to include as an undiagnosed illness; and (4) remand the Veteran's application to reopen a service-connected claim for asthma, to include as secondary to a service-connected disability, remain undisturbed. FINDINGS OF FACT 1. On February 9, 2016, the Board issued a decision granting entitlement to TDIU, effective February 4, 2010, and entitlement to SMC at the housebound (s-1) rate, also effective February 5, 2010. In that decision, the Board failed to consider relevant favorable evidence in its possession demonstrating that the Veteran's TDIU award can be based on the disabling effects of a single service-connected disability. 2. The Veteran stopped working full time as a mail carrier on February 3, 2010. 3. In its February 9, 2010 decision, the Board awarded a higher initial disability rating from 30 to 70 percent from June 4, 2009 to June 2, 2015. As a result, from the point in time the Veteran stopped working (February 4, 2010) to the present day, the Veteran has been service-connected for adjustment disorder with depressed mood, rated as 70 percent disabling; hiatal hernia with Barrett's esophagus, reflux, intermittent hoarseness and irritable bowel syndrome, rated 60 percent disabling; muscle tension headaches, rated at 50 percent disabling; and fibromyalgia, rated as 40 percent disabling. Such disabilities combine for a 100 percent schedular rating. 4. The evidence favors a finding that the Veteran's service-connected fibromyalgia, in and of itself, has rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since February 4, 2010. 5. From February 4, 2010 to the present, the Veteran has been unemployable due to a single service-connected disability (fibromyalgia), with additional service-connected disabilities independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. That portion of the February 9, 2016 Board decision awarding TDIU and SMC at the housebound (s-1) rate is vacated. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). 2. Since February 4, 2010, the criteria for a total disability rating based on individual unemployability due to service-connected fibromyalgia have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19 (2015). 3. The criteria for SMC at the housebound rate (s-1) are met from February 4, 2010, to the present. 38 U.S.C.A. §§ 1114(s), 5101, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.350 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). As noted above, in a February 9, 2016 decision the Board awarded the Veteran TDIU and SMC at the housebound (s-1) rate. Importantly, the Board based this TDIU award on a finding that the combined effects of both the Veteran's service-connected adjustment disorder with depressed mood and his fibromyalgia rendered the Veteran unemployable. While not necessarily incorrect, upon further review, it appears that there was pertinent evidence of record at the time of the Board's February 2016 decision sufficient to award TDIU based on the effects of a single service-connected disability, as opposed to the effects of two disabilities. Indeed, a January 2011 VA examination report specifically indicated that the Veteran's fibromyalgia alone prevents employment. Failure to recognize and discuss this evidence amounted to a denial of due process of law under 38 C.F.R. § 20.904, as an award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008). As such, that portion of the February 9, 2016 decision awarding TDIU and SMC at the housebound (s-1) rate (based on a finding that two service-connected disabilities render the Veteran unemployable, as opposed to just one), is vacated. II. TDIU and SMC at the Housebound (s-1) Rate A. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The Board is granting the Veteran's TDIU claim, and is awarding SMC at the housebound (s-1) rate in its decision below. To the extent that there may be any deficiency of notice or assistance with respect to these claims, there is no prejudice to the Veteran in proceeding with a decision on the merits. B. Analysis The Veteran filed an unsigned formal claim for entitlement to a total rating based on individual unemployability in August 2012 and signed a formal claim in February 2015. In November 2010 however, the Board determined that the issue of TDIU had been already raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 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. See 38 C.F.R. § 4.16 (2015). 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. See 38 C.F.R. § 4.16(a) (2015). The Veteran stopped working full time as a mail carrier on February 3, 2010. For all times thereafter, the Veteran has been service-connected for adjustment disorder with depressed mood, rated as 70 percent disabling (as per that part of the Board's February 9, 2016 decision that remains undisturbed); hiatal hernia with Barrett's esophagus, reflux, intermittent hoarseness and irritable bowel syndrome, rated 60 percent disabling; muscle tension headaches, rated at 50 percent disabling; fibromyalgia, rated as 40 percent disabling. Such disabilities combine for a 100 percent schedular rating. As such, the Veteran meets the schedular criteria for TDIU under the provisions of 38 C.F.R. § 4.169(a). The Board recognizes that the Veteran's combined schedular disability rating is already at 100 percent for all times after the Veteran stopped working. In June 1999, VA's Office of General Counsel (OGC) issued VAOPGCPREC 6-99 addressing questions of whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedential opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). In Bradley v. Peake, the United States Court of Appeals for Veterans Claims, taking a position contrary to the one reached in VAOPGCPREC 6-99, held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC ) under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)). In view of the holding in Bradley, which recognized that it was possible for a veteran first to be awarded TDIU based on a single disability and subsequently receive schedular disability ratings for other conditions that would not duplicate in the count of disabilities for special monthly compensation purposes (that is, separate disabilities that could combine for a 60 percent disability rating), in November 2009, the VA General Counsel partially withdrew VAOPGCPREC 6-99 to the extent it was inconsistent with Bradley. VA has a "well-established duty" to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); 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 under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. at 294 (finding that special monthly compensation "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 independent of the other 100 percent disability rating. See id. Upon review of the record, there is no question that the Veteran is currently unemployable. He has been awarded disability compensation benefits from the Social Security Administration, and his physicians have determined that his disabilities prohibit him from working. The key question at issue is whether the Veteran's unemployability is due service-connected disability or disabilities. While the evidence demonstrates that the Veteran's service-connected adjustment disorder manifests in occupational and social impairment in most areas (as explained in that portion of the Board's February 9, 2016 decision that was not vacated above), there is other evidence of record demonstrating that the Veteran's service-connected fibromyalgia, in and of itself, renders the Veteran unemployable, notwithstanding the effects of his service-connected adjustment disorder or any other service-connected disability. Indeed, on January 6, 2011 the Veteran appeared for a VA fibromyalgia examination, at which time the VA examiner noted the Veteran has been unable to return to any gainful employment. The Veteran exhibited "profound" fatigue, and involvement of both upper and lower extremities in terms of stiffness, joint aches and muscle aches, predominately in the right shoulder and arm, as well as the left hip and leg. He was noted to have spasms in both calves intermittently. His symptoms in the arms and legs were shooting like electrical pains with paresthesias in the fingertips bilaterally. The VA examiner indicated that the Veteran's symptoms were continuous, not intermittent, and were present well over a third of his waking hours, as well as sleep hours, amounting to approximately 90 percent of the time. The Veteran was refractory to all treatment in terms of remission, and he specifically reported having trouble even doing activities of daily living, to include dressing, bathing and light housework. The diagnostic immpression was fibromyalgia, and the symptoms were specifically noted to "prevent employment." See the January 2011 VA examiner's report, at 2. As noted above, the Board failed to acknowledge and discuss this pertinent evidence in its previous (now-vacated) determination that unemployability was attributable to the combined effects of two service-connected disabilities-namely, adjustment disorder and fibromyalgia. While the Veteran's psychiatric disability certainly contributes to his overall inability to secure and maintain gainful employment, the Board finds the above-referenced January 2011 VA examiner's report to be highly probative evidence demonstrating that the Veteran's service-connected fibromyalgia in and of itself renders the Veteran unemployable, notwithstanding the effects of his psychiatric disability. Given the severity of the Veteran's symptoms associated with fibromyalgia and the fact that his symptoms are present continuously, the Board finds it highly unlikely that he would be able to perform in an employment setting. The Board recognizes that the Veteran's fibromyalgia is only rated 40 percent schedularly. Pertinently however, in determining whether the Veteran's service-connected disabilities meet the schedular requirements for TDIU as stated in 38 C.F.R. § 4.16(a), all service-connected disabilities will be considered. This eligibility determination is not restricted to only those service-connected disabilities that cause or contribute to unemployability. See M21-1, IV.ii.2.F.4.e (Sept. 24, 2015). In other words, if unemployability is caused by a single service-connected disability, that disability need not be rated 60 percent disabling as a prerequisite for an award of a schedular TDIU under 38 C.F.R. § 4.16(a). Rather, basic eligibility is determined based on review of all service-connected disabilities and their respective ratings, and if the threshold requirements outlined in 38 C.F.R. § 4.16(a) are met, a corresponding TDIU award may be based on any one service-connected disability irrespective of its rating. Based on the above, the Board finds that entitlement to a TDIU as due to service-connected fibromyalgia alone is warranted, effective the date following the Veteran's final day of full-time work, February 4, 2010. See 38 U.S.C.A. § 5110(a) (the effective date of an increase in a veteran's disability compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore"). An award of SMC at the housebound rate may be awarded if the Veteran has a service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C.A. § 1114(s)(1). As noted above, the Court in Bradley held that section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating." See Bradley, 22 Vet. App. at 293. Subsequently, in Buie, the Court clarified 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. See Buie, 24 Vet. App. at 250. As discussed above, the Board has awarded the Veteran TDIU as due to a single service-connected disability-fibromyalgia-effective from February 4, 2010. The Veteran currently has additional service-connected disabilities rated 70 percent, 60 percent and 50 percent disabling, respectively, and such ratings have been made effective since prior to February 4, 2010. Thus, SMC at the housebound rate under 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350(i) is also warranted from February 4, 2010. ORDER That portion of the February 9, 2016 Board decision awarding TDIU due to service-connected adjustment disorder and depressed mood and fibromyalgia and SMC at the housebound (s-1) rate effective February 4, 2010 is vacated. Entitlement to TDIU due solely to service-connected fibromyalgia effective February 4, 2010 is granted. Entitlement to the SMC at the housebound (s-1) rate for the period from February 4, 2010 to the present day is granted, subject to the rules and regulations governing the award of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs