Citation Nr: 1822013 Decision Date: 04/13/18 Archive Date: 04/25/18 DOCKET NO. 14-31 271A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than July 26, 2011, for the award of special monthly compensation at the housebound rate (SMC). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969, and July 1973 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The record shows that the Veteran withdrew his hearing request in this appeal. See VA Form 9 (October 2014). See also, Appellate Brief (March 2018). FINDINGS OF FACT 1. From September 17, 1997, the Veteran met the criteria for a total evaluation based on individual unemployability (TDIU) due to PTSD; at this time, the Veteran also had additional disabilities ratable at 60 percent or more. 2. The criteria for SMC at the housebound rate were met as of September 17, 1997, CONCLUSION OF LAW The criteria for an earlier effective date of September 17, 1997, for the grant of SMC at the housebound rate are met. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Except as otherwise provided, the effective date of an award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.400(o). Entitlement to SMC will be inferred when then record indicates that it may be available, even if the Veteran does not place eligibility for this ancillary benefit at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that SMC "benefits are to be accorded when a [V]eteran becomes eligible without need for a separate claim."); cf. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum benefits allowed by law). SMC at the "housebound" rate is payable when 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. This requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: On a schedular basis; on an extraschedular basis; or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating), or 4.30 (temporary total convalescence rating). Also, a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) meets the criterion only if assigned for a single disability. Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Facts & Analysis In a June 1997 rating decision, the RO granted TDIU effective October 30, 1995, based on arthritis of multiple joints, hypertension, and hiatal hernia. See Rating Decision (June 1997). Subsequently, in an August 2003 rating decision, the RO granted service connection for post traumatic stress disorder (PTSD) and assigned a 70 percent evaluation (effective September 17, 1997-date of claim). The record shows that, in addition to PTSD, the Veteran was service connected for arthritis of multiple joints, hypertension, and hiatal hernia-ratable at 60 percent or more from September 17, 1997. See Rating Decision - Codesheet (May 2012). VA received the Veteran's claim for SMC on July 26, 2011. See VA Form 21-0820 (July 2011). In a May 2012 rating decision, the RO granted the claim for SMC at the housebound rate. At this time, the RO incorrectly stated that the Veteran's prior TDIU award was based on a single disability-arthritis-which when considered along with the 70 percent evaluation for PTSD met the schedular criteria for SMC. The RO assigned an effective date of July 26, 2011, as this was the date the claim was received. Having carefully reviewed the record, the Board finds that the criteria for an effective date of September 17, 1997, are met for the award of SMC at the housebound rate. From September 17, 1997, the Veteran met the criteria for TDIU due to PTSD alone; also, at this time, the Veteran had additional disabilities ratable at 60 percent or more. Hence, the criteria were met from that date for SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). The Board notes that, for the purpose of meeting the first criterion of SMC, a rating of 100 percent may be based on TDIU if it is assigned for a single disability. See Buie supra. Here, the Board finds that the Veteran met the criteria for an award of TDIU based on PTSD alone (a single disability) as of September 17, 1997. In this regard, the evidence of record establishes that the Veteran was unable to perform the mental and physical acts required for substantially gainful employment from this date due to his service-connected mental disorder. Note that report of VA examination dated in October 1997 reflects that the Veteran was isolated and unable to be around people; he had impaired thought processes; he was depressed and cried without reason; he had his weapons taken away, and "feels like he wanted to hurt someone." See also VA Form 21-4138 (September 1997) (3-4 hours of sleep; night sweats; and desire to hurt other people). Thus, although TDIU had been previously awarded, the Board accepts that the criteria for TDIU under 38 C.F.R. § 4.16(a) were also met based on PTSD alone from September 17, 1997 (date of claim for PTSD and effective date of grant of service connection). See Rating Decision (August 2003). See also, Bradley supra. The Veteran argues that the SMC award should date to October 30, 1995-the same date as the award of TDIU. See Rating Decision - Narrative (June 1997). He submitted copies of the Federal Register and Buie v. Shinseki, 24 Vet. App. 242 (2011). The Board understands the Veteran's theory of entitlement, which is that an effective date for SMC should be the same as his 1995 effective date for TDIU. However, in this case, the Veteran's award of a 100 percent evaluation based on TDIU in a June 1997 rating decision was not assigned for a single disability; but rather, it was assigned based on arthritis of multiple joints, hypertension, and hiatal hernia. See Rating Decision (June 1997). Although the RO incorrectly stated in the May 2012 rating decision that TDIU has been awarded based on a single disability (arthritis), this is not shown on review of the June 1997 rating decision that awarded TDIU. Because the TDIU award was not assigned for a single disability-or otherwise shown to have been met based on a single disability at that time-an effective date of October 30, 1995, for the award of SMC at the housebound rate is not warranted. Accordingly, an effective of September 17, 1997, and no earlier, for the award of SMC at the housebound rate is granted. There is no doubt to resolve. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER An effective of September 17, 1997, and no earlier, for the award of SMC at the housebound rate is granted. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs