Citation Nr: 18158965 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-58 577A DATE: December 18, 2018 ORDER The discontinuation of SMC at the housebound rate, based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher, effective September 1, 2015, was proper. FINDING OF FACT As of July 1, 2013, the Veteran did not meet the statutory requirements for payment of SMC at the housebound rate based on a schedular 100 percent evaluation for a single service-connected disability, plus additional service-connected disabilities independently ratable at 60 percent, and he did not otherwise meet the criteria for this benefit. CONCLUSION OF LAW The discontinuance of SMC at the housebound rate based on a schedular 100 percent evaluation for a single service-connected disability, plus additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, effective September 1, 2015 was proper and there is no other basis for an award under this statute. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to April 1972. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Board noted that the issue of seeking restoration of SMC at the housebound rate from September 1, 2015 was not before the Board, and remanded the matter for the issuance of a statement of the case (SOC). 1. Discontinuance of SMC - Housebound SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected 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. § 1114 (s); 38 C.F.R. § 3.350 (i). In a December 2012 rating decision, the Veteran was granted SMC based on the housebound rate effective December 7, 2011 to November 1, 2013. The Veteran’s eligibility was pursuant to a temporary total evaluation for right total knee replacement revision, and other disabilities independently rated at 60 percent. In a March 2014 rating decision, the Veteran’s right knee disability was reduced to 60 percent, effective July 1, 2013. In that the decision, the RO proposed discontinuance of SMC based on the housebound rate. In the June 2015 rating decision on appeal, the RO discontinued SMC at the housebound rate effective September 1, 2015, due to the previous reduction of the disability rating for right knee disability from 100 percent to 60 percent. As a result of the reduction from 100 percent to 60 percent for the Veteran’s service-connected right knee disability, the Veteran did not meet the schedular rating criteria at the housebound rate based on one service-connected disability rated at 100 percent and a separate disability rated at 60 percent or higher. The Veteran is now service connected for the following disabilities as of July 1, 2013: status post left total knee replacement, rated as 60 percent disabling; right above-the-knee amputation associated with residuals of right total knee replacement, rated as 60 percent disabling; hypertension secondary to bilateral knee condition associated with residuals of right total knee replacement, rated as noncompensable; scar associated with status post left total knee replacement, rated as noncompensable; scar, right lower extremity associated with right above-the-knee amputation, rated as noncompensable; and fungal infection, right thigh associated with right above-the-knee amputation, rated as noncompensable. The Veteran’s combined rating as of July 1, 2013 was 90 percent. The Veteran did not meet the statutory requirements for the payment of SMC at the housebound rate based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher as of July 1, 2013, as he was not in receipt of a 100 percent rating for any disability as of that date. The Veteran has been in receipt of a total rating based upon individual unemployability due to service-connected disabilities (TDIU) since August 21, 2002. There is no indication that any one of the Veteran’s service-connected disabilities, standing alone, was sufficient to produce unemployability. Rather, the Veteran’s TDIU is based on the combined effects of his service-connected right and left knee disabilities, such that no single disability forms the basis for the rating. The October 2002 rating decision granting TDIU indicated that the grant was based on letters from two health care professionals and a social security notice award letter “shows you are unable to secure or follow a substantially gainful occupation as a result of your service connected disabilities.” The RO’s use of the plural and the fact that the letters from the health care professionals cited both knees in concluding that the Veteran was unemployable reflects that the TDIU has been based on multiple disabilities. Moreover, there is no evidence indicating that the disability in one of the knees could be used as a basis for a finding of unemployability. Thus, there is no way for the Board to find that a single disability could warrant TDIU and that a combination of other disabilities would be independently ratable at 60 percent or more which could satisfy the criteria of 38 U.S.C. § 1114 (s). The Veteran contends that continuation of SMC based on housebound rate is warranted, on the basis of right above-the-knee amputation, and the use of a prosthesis and a walker. The Veteran also asserts that his service-connected left knee and hypertension disabilities, in addition to his non-service connected glaucoma, warrants continuation of SMC at the housebound rate. See December 2016 Correspondence, December 2016 VA Form 9. The evidence of record, however, does not demonstrate that the Veteran meets the alternative criteria for SMC at the housebound rate under 38 U.S.C. § 1114 (s)(2), due to being permanently housebound by reason of service-connected disability or disabilities. Specifically, both the February 2014 and May 2016 VA examiners concluded that the Veteran was not permanently bedridden or currently hospitalized. The examiners noted that the Veteran could leave the home without restriction. This evidence is not contradicted by any of the lay evidence of record. In his December 2016 correspondence and VA Form 9, the Veteran cited his right knee amputation and a fall while his wife was in the hospital, however, such is not enough to meet the requirements of 38 U.S.C. § 1114(s). (Continued on the next page)   Based on the foregoing, the Veteran did not meet the statutory requirements for the payment of SMC at the housebound rate based on one service-connected disability rated as 100 percent and separate disabilities rate at 60 percent or higher as of July 1, 2013, nor is he permanently housebound by reason of service-connected disability or disabilities. Therefore, the Veteran’s claim for continued payment of SMC at the housebound rate effective July 1, 2013, must be denied because it is without legal merit. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel