Citation Nr: 1754794 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-30 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. T. Brant, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1984. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On his appeal on a VA Form 9 dated in October 2014, the Veteran requested a Travel Board hearing. However, in January 2015, the Veteran indicated that he wished to withdraw his request for a Board hearing. In October 2015, the Veteran requested a decision review officer (DRO) hearing at the local RO. In subsequent submissions, the Veteran indicated that he did not desire a Board hearing and requested that his case be forwarded to the Board for a decision. See February 2016 and May 2016 submissions. In June 2016, the RO requested that the Veteran clarify whether he still wished to have a DRO hearing. Although the Veteran did not specifically respond to this request, in November 2016, he again indicated that he did not desire a Board hearing and requested that his case be forwarded to the Board for a decision. As such, the Board may proceed on the appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. From December 28, 2011, to February 10, 2016, the Veteran has been unable to obtain or retain substantially gainful employment due to the combined effects of his service-connected disabilities. 2. Beginning February 11, 2016, the evidence demonstrates that the Veteran's service-connected nephrolithiasis likely precludes him from securing or following a substantially gainful occupation. 3. Based on the Board's award of TDIU as a result of the Veteran's service-connected nephrolithiasis, beginning February 11, 2016, the Veteran had a single service-connected disability rated at 100 percent plus additional service-connected disabilities having a combined rating of 60 percent or more during this timeframe. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). 2. Beginning February 11, 2016, the requirements for SMC at the housebound rate have been met. 38 U.S.C. §§ 1114(s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, 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 that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Here, the Board finds that for the period from December 28, 2011, to February 10, 2016, a TDIU is warranted based on the combined effects from Veteran's service-connected disabilities. At the outset, the Board notes that during this timeframe, the Veteran was in receipt of service connection for ischemic heart disease status post myocardial infarction and permanent pacemaker implant, rated at 60 percent; prostate cancer, post radical prostatectomy, rated at 40 percent; diabetes mellitus type II, rated at 20 percent; cold injury, right lower extremity, rated at 20 percent; irritable bowel syndrome, rated at 10 percent; hemorrhoids, rated at 10 percent; scar associated with ischemic heart disease, rated as noncompensable; right inguinal hernia, rated as noncompensable; erectile dysfunction, rated as noncompensable; and scars associated with prostate cancer, rated as noncompensable. As such, his combined evaluation beginning during this timeframe met the schedular percentage requirements for a TDIU. Additionally, the evidence demonstrates that during this timeframe, the Veteran was unable to obtain or retain substantially gainful employment due to the combined effects of his service-connected disabilities. On the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, the Veteran reported that he last worked full-time as a warehouse stockman at Home Depot until March 2003, which he indicated was the date his disabilities affected his full-time employment. He listed his ischemic heart disease and diabetes mellitus type II as the disabilities preventing him from maintaining gainful employment. He noted that he had a high school education. On a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, signed by the Veteran's past supervisor at Home Depot, it was noted that the Veteran was no longer working because he could not take walking on the concrete floor. It was noted that his feet would go numb, affecting his heart. It was noted that the Veteran experienced immense pain to no feeling in his feet, shortness of breath, erratic heartbeat, and dizziness. In a statement dated in April 2012, the Veteran's past supervisor at Home Depot noted that when the Veteran was employed, he showed signs of slowing down on his physical ability to carry his weight like all of the other workers. The supervisor noted that the Veteran was slow and showed signs of growing slower. The supervisor indicated that she transferred the Veteran to working on a computer terminal, but he complained of his vision becoming severely blurred after working at the terminal a couple of hours. The supervisor noted that although the Veteran was a good, honest, and loyal man, he could not perform the physical tasks that she asked of him and she had to recommend that he be discharged. In June 2012, the Veteran was afforded VA examinations for his service-connected disabilities. The Veteran reported that the primary reason he was unable to work was due to his feet hurting and going numb when standing, causing him to lose his balance. The examiner noted that the Veteran's service-connected residuals of a cold injury to the right lower extremity impacted his ability to work as a result of numbness to the foot. Ultimately, the examiner found that the Veteran could function in a predominantly sedentary occupational environment with his service-connected physical disabilities with limitations. The examiner noted the following physical limitations: no lifting greater than 25 pounds; no repetitive lifting from 15 to 25 pounds, no more than two times per hour; no climbing ladders, operating a forklift, or machinery; no repetitive back-bending task, no more than two times per hour; no prolonged standing or walking; no more than 10 minutes total of combined standing or walking per hour. In a statement dated in November 2012, the Veteran described the functional limitations resulting from his service-connected prostate cancer, diabetes type II, and ischemic heart disease. He indicated that he would not be able to maintain gainful employment with these limitations. In his appeal on a VA Form 9 dated in October 2014, the Veteran again described the functional limitations from his worsening service-connected disabilities. He also clarified that he had difficulty with blurry vision when working on the computer as a result of his blood sugar getting either too high or too low from his service-connected diabetes mellitus type II. He explained that this limitation would impact his ability to perform sedentary work. Given the Veteran's credible lay statements regarding the impact of his service-connected disabilities on his ability to work and the functional limitations described by the VA examiner and the Veteran's past supervisor, the Board finds that the Veteran's service-connected disabilities likely prevented him from obtaining and maintaining gainful employment from December 28, 2011, to February 10, 2016. In a June 2016 rating decision, the RO granted entitlement to service connection for nephrolithiasis and assigned a 60 percent evaluation effective February 11, 2016. The Board finds that for the period beginning February 11, 2016, the Veteran's service-connected nephrolithiasis, in and of itself, likely precludes him from securing or following a substantially gainful occupation. In this regard, a June 2016 examination report revealed the Veteran has chronic kidney disease manifested by renal dysfunction with symptoms of constant proteinuria, some edema, and weakness. The examiner found that this disability impacted the Veteran's ability to work as it made him lack energy for exertion. The examiner noted that the Veteran's ability to work would be "limited." In summary, the preponderance of the evidence establishes that from December 28, 2011, to February 10, 2016, the Veteran, given his occupational history and functional limitations, was unable to obtain or retain substantially gainful employment due to the combined effects of his service-connected disabilities. The preponderance of the evidence also establishes that beginning February 11, 2016, the Veteran's service-connected nephrolithiasis, in and of itself, likely precludes him from securing or following a substantially gainful occupation. II. SMC The Board must consider entitlement to SMC if raised by the rating issue on appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC at the (s) rate is payable if 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, 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 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion (a single service-connected disability rated at 100 percent), ratings of 100 percent may be based on any of the following grants of a total rating: on a schedular basis; on an extraschedular basis; on the basis of a TDIU if granted for a single disability; or, on the basis of a temporary total rating. Subsection 1114(s) housebound 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. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011). However, in Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court held that a TDIU satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more, for purposes of entitlement to special monthly compensation for a housebound rating. In other words, 38 U.S.C. § 1114(s) for housebound benefits does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent. Id. A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a total rating. Id. Nonetheless, the TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits. Id. In addition, the Bradley decision also stated that the decision to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) was specifically limited to TDIU ratings. That is, a TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability in considering entitlement to housebound benefits 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."). As noted above, the Board awarded a TDIU beginning February 11, 2016, as a result of the Veteran's service-connected nephrolithiasis. As such, the first element of entitlement to SMC at the (s) rate is shown. The Veteran also has service connection for the following disabilities: ischemic heart disease status post myocardial infarction and permanent pacemaker implant, rated at 60 percent; prostate cancer, post radical prostatectomy, rated at 40 percent; diabetes mellitus type II, rated at 20 percent; cold injury, right lower extremity, rated at 20 percent; irritable bowel syndrome, rated at 10 percent; hemorrhoids, rated at 10 percent; scar associated with ischemic heart disease, rated as noncompensable; right inguinal hernia, rated as noncompensable; erectile dysfunction, rated as noncompensable; and scars associated with prostate cancer, rated as noncompensable. When combined under 38 C.F.R. § 4.25, these additional service-connected disabilities have a combined evaluation of 60 percent or more. They also involve different anatomical segments or bodily systems than the service-connected nephrolithiasis. Accordingly, for the entire period on appeal, the second element of entitlement to SMC at the (s) rate is shown. Accordingly, beginning February 11, 2016, SMC at the statutory housebound (s) rate is granted. ORDER For the entire period on appeal (beginning December 28, 2011), entitlement to TDIU is granted, subject to the regulations pertaining to the payment of monetary benefits. Beginning February 11, 2016, entitlement to SMC at the (s) rate is granted, subject to the regulations pertaining to the payment of monetary benefits. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs