Citation Nr: 18152747 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-27 858 DATE: November 27, 2018 ORDER Prior to June 11, 2012, special monthly compensation (SMC) pursuant to 38 U.S.C. 1114(s) is denied. FINDINGS OF FACT 1. Prior to June 11, 2012, the Veteran did not have a service-connected disability rated as 100 percent disabling. 2. The Veteran’s TDIU rating was due to the impact of multiple service-connected disabilities, and not a single service-connected disability. 3. Prior to June 11, 2012, the Veteran was not permanently housebound due to service-connected disabilities. CONCLUSION OF LAW The criteria are not met for entitlement to special monthly compensation benefits prior to June 11, 2012 pursuant to 38 U.S.C. § 1114. 38 U.S.C. §§ 1114(s), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.350(i) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from May 1981 to August 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his wife testified at a June 2018 Board Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. This issue was remanded by the Board on several occasions, most recently in June 2016. In June 2017, this issue was denied by the Board. However, in light of the testimony taken at the June 2018 hearing, the Board will address this issue again. The Veteran has another appeal before the Board. Because that appeal involves an issue dependent on different law and facts, it is the subject of a separate decision. See BVA Memorandum No. 01-18-04; VA Purplebook 01-18-v1.0.0. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to SMC at the s level prior to June 11, 2012. The Veteran seeks SMC pursuant to 38 U.S.C. § 1114(s) (the “(s) rate”). The Board notes that the Veteran has already been awarded special monthly compensation at the (s) rate for the period from April 4, 2004, to July 1, 2005, and from June 11, 2012 to the present. Pursuant to 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if a 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 or more, 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. § 1114(s). During the rating period at issue, that period prior to June 11, 2012, the Veteran’s service-connected disabilities were: Crohn’s disease, evaluated at 10 percent from August 19, 1996, 30 percent from July 6, 2004, and 100 percent from January 6, 2015; Grave’s disease, evaluated at 30 percent from August 19, 1996, and at 60 percent from June 11, 2012; an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), dysthymia, and a mood disorder, evaluated at 30 percent from June 26, 2010, 50 percent from August 16, 2010, 30 percent from October 14, 2010, and 50 percent from December 14, 2011; atrial septal defect with right bundle branch block and pulmonary hypertension, evaluated as noncompensable from August 19, 1996, 30 percent from January 12, 1998, and 100 percent from November 1, 2001, 30 percent from February 1, 2002, 100 percent from April 4, 2004 and 30 percent from July 1, 2005; degenerative disc disease and osteoporosis of the lumbosacral spine, evaluated at 10 percent from September 30, 1999, and 20 percent from June 26, 2010, and; right ankle sprains, evaluated as noncompensable from August 19, 1996, and 10 percent from March 1, 2004. The Veteran has also been awarded service connection with noncompensable ratings for the following disabilities: a right thumb fracture, hemorrhoids, post-surgical excision scars of the left mandible and right elbow, and urticaria. His combined ratings have been 40 percent from August 19, 1996, 60 percent from January 12, 1998, 100 percent (total) from November 1, 2001, 60 percent from February 1, 2002, 70 percent from July 6, 2004, 100 percent from April 4, 2005, 70 percent from July 1, 2005, 80 percent from June 26, 2010, 90 percent from August 16, 2010, 80 percent from October 14, 2010, 90 percent from December 14, 2010, and 100 percent from January 6, 2015. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has also been awarded from July 6, 2004, to January 6, 2015. The February 2017 rating decision that granted TDIU for the period prior to 2010 and assigned and effective date of July 6, 2004 clearly indicated that the grant of TDIU for this period was based upon service-connected conditions “in combined form.” The rating decision cited to the December 2016 medical opinion which found the combined effects of the Veteran’s service connected disabilities interfered with the Veteran’s employment and would preclude the veteran from obtaining or maintaining any form of substantially gainful employment. The December 2012 rating decision that initially granted TDIU effective June 26, 2010, indicated they were granting benefits “due to your service connected disabilities to include grave’s disease, atrial septal defect with right bundle branch block and pulmonary hypertension, psychiatric disorder, to include mood disorder and posttraumatic stress disorder, lumbar degenerative disc disease and osteoporosis, crohn’s disease and right ankle sprain that prevent you from obtaining and maintaining gainful employment. However, the November 2014 Board decision found that although the RO granted TDIU on the combined effects of multiple service-connected disabilities, the Board found that TDIU could have been established on the basis of the disabling effects of the Grave’s disease alone. The Board cited to the October 2012 VA opinion which noted the Veteran had easy fatigability, tiredness, muscular weakness and difficulty sleeping resulting in lack of concentration and focus on the job which would adversely affect job performance. It is because of this opinion that the RO increased the Grave’s disease to 60 percent disabling as of June 11, 2012. Based on the above, the Veteran is not entitled to special monthly compensation under 38 U.S.C. § 1114 (s) as a matter of law prior to June 11, 2012, because he does not have a single service-connected disability rated at 100 percent for this period. 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. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). The Court of Appeals for Veterans Claims (Court) has interpreted 38 U.S.C. § 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). In the present case, however, while the Veteran has been awarded a TDIU rating for the period on appeal, this award was not based on a single service-connected disability; rather, it was based on the totality of his service-connected disabilities. The Board specifically remanded the claim in June 2016 for an opinion as to the functional impact of the Veteran’s disabilities on his ability to work. In a February 2017 opinion statement, a VA physician opined that while the Veteran was unemployable, this determination was based on the “combined effects of the Veteran’s service-connected conditions”, not any single disability. The examiner explained there were multiple disabilities that were being treated with mixed results and indicated that the lumbosacral spine was “the straw that broke the camel’s back.” Furthermore, the evidence concerning the Grave’s disease prior to June 2012 did not indicate that it alone would prevent the Veteran from secure or follow a substantially gainful occupation. For example, the October 2006 VA examination described the history of the Grave’s disease and noted that he treated with radioactive iodine in 1995. The examiner explained that “as a result of this treatment with iodine 131, the Veteran developed hypothyroidism and since then according to the veteran his hypothyroidism is very well controlled on medication. He complains of some mental disturbance with occasional short memory loss, but it is only occasional and he denies having any sluggishness or any dementia due to this hypothyroidism.” Similarly, an April 2012 letter from Z.H., M.D. reported that the pulmonary hypertension, TIA, Pacer, Crohn’s disease, cervical pain and stenosis would result in symptoms such as fatigue, angina and dizziness and result in him being 100 percent disabled and unemployable. The 2011 VA examination noted that his Grave’s disease was being treated with medication and the Veteran denied side effects at that time. The examiner noted that “crohn’s disease under control, post radioactive iodine hypothyroidism, urticaria not found, the palmar scar excision right elbow not found, hemorrhoids found, left mandible excisional scar cyst not seen without effect on physical or sedentary employment.” The examiner found the pacemaker, lumbar spine, bilateral knees and cervical spine would have effects on employment. The Board further considered whether any other disability on its own resulted in unemployability during this period. The evidence reflects however that during this period, the Veteran’s treating physicians and VA examiners have found the impact on employment to be a result of the combined effect of multiple disabilities. Unlike the period from June 2012, there is nothing in the record prior to this date that suggests any one service-connected disability on its own rendered the Veteran unable to secure and follow substantially gainful employment. Thus, prior to June 11, 2012, the Veteran had neither a single disability rated at 100 percent nor a single disability which rendered him totally disabled based on unemployability. Moreover, the evidence of record does not reflect actual housebound status. The Veteran does not contend and the evidence does not show that he was housebound due to service-connected disabilities during the period at issue. The evidence does not reflect that the Veteran was substantially confined, as a result of the service-connected disabilities, to his dwelling and the immediate premises; or that he was institutionalized due to any of the service-connected disabilities. See 38 C.F.R. § 3.350(i). As recently as September 2016, when the Veteran was afforded several VA orthopedic, neurological, gastrointestinal, and other examinations, he exhibited the ability to ambulate with the aid of a rolling walker, and reported taking short walks for exercise. (Continued on the next page)   The preponderance of the evidence does not support a finding that the Veteran was entitled to special monthly compensation prior to June 11, 2012. Accordingly, for the above reasons, the Board finds that the criteria for entitlement to special monthly compensation at the housebound rate have not been met for the period prior to June 11, 2012, and the appeal must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel