Citation Nr: 18159302 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-04 408 DATE: December 18, 2018 ORDER 1. Subject to the law and regulations governing payment of monetary benefits, an award of total disability rating based on individual unemployability (TDIU) is granted. 2. Subject to the law and regulations governing payment of monetary benefits, an award of special monthly compensation (SMC) awarded at the housebound rate and pursuant to 38 U.S.C. § 1114(s), is granted. FINDINGS OF FACT 1. Prior to May 16, 2018, the Veteran was awarded a total of a 90 percent rating due to manifestation of Guillain Barre Syndrome (GBS). 2. Effective July 26, 2010, the evidence showed that the manifestations of the Veteran’s GBS rendered him unable to secure or follow a substantially gainful occupation. 3. Effective May 16, 2018, the Veteran was granted a 100 percent total disability rating for compensation. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU, effective July 2010, have been met. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16 (2016). 2. The criteria for Special Monthly Compensation (SMC), effective May 2018, have been met. 38 U.S.C. § 1114(s) (2017); 38 C.F.R. § 3.350(i) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1993 to July 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of the VA Regional Office (RO) in Cleveland, Ohio. TDIU The Veteran is seeking TDIU based on his inability to remain employed due to his service connected disabilities. The Veteran contends that his disabilities cause him to lose balance while standing or walking and has limited his motor skills and muscle strength in his upper and lower extremities. 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 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. Total disability ratings 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, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 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. A Veteran may be considered as unemployable upon termination of employment while was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. 38 C.F.R. § 4.18. A Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the Veteran. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2017). Applicable regulations place responsibility for the ultimate total disability rating based on individual unemployability determination on VA, not a medical examiner. Accordingly, it should now be clear that the ultimate issue of whether a TDIU claim should be awarded is not a medical issue, but is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran is currently service connected for seven disabilities, namely: acute polyneuropathy right upper extremity (major) (rated at 40 percent), acute polyneuropathy with paresis left peroneal nerve (rated at 30 percent), median and ulnar nerve deficits left upper extremity secondary to acute polyneuropathy (minor) (rated at 30 percent), right lower extremity weakness and paresthesias secondary to acute polyneuropathy (rated at 30 percent), migraine (rated at 30 percent), persistent depressive disorder associated with polyneuropathy right upper extremity (major) (rated at 30 percent) and tinnitus (rated at 10 percent). See Rating Decision, July 2018. The medical evidence of record supports that the Veteran has experienced symptoms of increased weakness in the activities and movement of his limbs since his diagnosis of GBS while in service in January 1997. See Service Treatment Records, October 1996, July 1997. As evidenced by the record, the Veteran is service connected for a series of nerve disorders in the upper and lower extremities, which have all been attributable to his GBS condition. See VA Examination Report, June 2018. In June 2004, the Veteran began his job as a correctional officer, but shortly thereafter became unable to work as his condition worsened and as it continued to spread throughout various parts of his body. See Hearing Transcript, page, 4, May 2018. The Veteran could no longer keep this job and filed for Social Security Disability which rendered him 100 percent disabled. See Form 9, January 2015; see also, Hearing Transcript, May 2018. The Veteran maintains that he is unemployable due to his service connected disabilities because he is no longer able to stand, walk or sit for long periods of time and his motor skills and muscle strength are now limited. See Form 9, January 2015; see also, Hearing Transcript, page 14, May 2018. The Veteran also testified that he often lost standing balance while at work and his condition has resulted in multiple surgeries and falling accidents or dropping items he attempts to hold in his hands. See Hearing Transcript, page 6, May 2018. The Board finds that after reviewing the Veteran’s Hearing Transcript of May 2018 and the other lay and medical evidence of record, including the VA examination reports, that the Veteran is unable to retain substantially gainful employment, thus rendering the Veteran totally disabled based on unemployability as a result of his service connected manifestations of his GBS, which were rated as 90 percent disabling as of July 26, 2010. As such, entitlement to a TDIU due to the manifestations of the Veteran’s GBS alone is warranted. SMC Pursuant to VA’s “well-established” duty to maximize a claimant’s benefits, the Board finds that the Veteran is entitled to an award of SMC effective May 16, 2018. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim” and remanding, pursuant to VA’s duty to maximize benefits, for VA to determine whether the Veteran’s posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Special monthly compensation is payable where the 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. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) 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. The Court has held that although a TDIU may satisfy the “rated as total” element of section 1114(s), a TDIU 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. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Here, the Board has determined that the Veteran is entitled to a TDIU based solely on the separate rated manifestations of his service-connected GBS. For SMC purposes, the Board the Veteran’s GBS satisfies the requirement of a “service connected disability rated as total.” See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Veteran has additional service connected disabilities apart from the manifestations of his GBS that are independently rated as 60 percent disabling. The record shows that as of May 2018, the Veteran was in receipt of a 30 percent rating for a migraine condition, 30 percent for persistent depressive disorder associated with acute polyneuropathy right upper extremity (major) and 10 percent ratings each for tinnitus. Thus, in light of the Court’s decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C.§ 1114(s) is granted, effective May 16, 2018. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jones, Associate Counsel