Citation Nr: 1823751 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-31 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to special monthly compensation (SMC) at the housebound rate. REPRESENTATION Veteran represented by: Ralph J. Bratch, Esq. ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Army from September 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The May 2012 rating decision granted entitlement to total disability rating based on individual unemployability (TDIU). The Agency of Original Jurisdiction (AOJ) did not address additional entitlement to SMC at the housebound rate with the grant of TDIU. The Veteran's attorney submitted a notice of disagreement (NOD) in September 2012 which argued that the Veteran was entitled to SMC at the housebound rate based on this grant of TDIU in the May 2012 rating decision, with additional disabilities rated greater than 60 percent. The AOJ took this NOD as a "new claim." An August 2013 rating decision denied entitlement to SMC at the housebound rate. The Veteran's attorney timely appealed this rating decision. However, the May 2012 rating decision is the rating decision appropriately on appeal. The Board notes that the record contains several Power of Attorney VA Forms 21-22 for different attorneys with the law firm Bosley and Bratch. The Board has listed the attorney for the Veteran as Ralph J. Bratch, as his name was on the form most recently provided (October 2017). FINDING OF FACT From January 20, 2010, the Veteran's "single disability" of PTSD alone warrants a TDIU (100 percent) rating in light of his education and work history. He has additional disabilities (independent of his PTSD) ratable at 60 percent or more (complications of diabetes mellitus at 70 percent). CONCLUSION OF LAW The criteria for special monthly compensation based on one service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more (housebound rate) have been met from January 20, 2010. 38 U.S.C. §§ 1114 (s), 5107, 5121 (West 2014); 38 C.F.R. §§ 3.350, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's attorney argues that the Veteran is entitled to SMC (s) based on a "single disability" rated as 100 percent disabling, with additional disabilities rated 60 percent or greater. See 38 U.S.C.§ 1114 (s); 38 C.F.R.§ 3.350 (i). The Veteran's attorneys argue that his diabetes mellitus and associated disabilities (specifically peripheral neuropathies) constitute a "single disability" for SMC (s) because they constitute "one" disability for the purposes of entitlement to TDIU. Indeed, the Veteran was granted entitlement to TDIU, effective January 20, 2010, based on his diabetes mellitus and peripheral neuropathies. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age. 38 C.F.R. §§ 3.341 (a), 4.16(a). If unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16 (a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. From January 20, 2010, the Veteran had the following disability ratings: PTSD (70 percent), diabetes mellitus with bilateral diabetic retinopathy and cataracts (20 percent), peripheral neuropathy of the right upper extremity associated with diabetes mellitus (20 percent), peripheral neuropathy of the left upper extremity associated with diabetes mellitus (20 percent), peripheral neuropathy of the right lower extremity associated with diabetes mellitus (20 percent), peripheral neuropathy of the left lower upper extremity associated with diabetes mellitus (20 percent), tinnitus (10 percent), glaucoma associated with diabetes mellitus (10 percent), erectile dysfunction associated with diabetes mellitus (noncompensable), and bilateral hearing loss (noncompensable). On his December 2011 TDIU claim form, the Veteran noted he was unable to work due to his diabetes, peripheral neuropathy, and PTSD. He noted he had worked as a truck driver from 1999 to 2009. He had one year of college education. The Veteran's 2009 PTSD examination included that he had a 12th grade education and had attended Cosmetology College for one year. His employment history included that he worked as a truck driver for a dining services and supplies company. Prior employment included custodial work, factory work, and limited employment related to playing music. His employment history was limited to physical employment, with the exception of his musical employment which was likely not substantially gainful employment. An April 2012 VA peripheral neuropathy examination included that the Veteran had decreased grip in both hands and was unable to lift more than 8 pounds at the gym. He also had an antalgic gait due to proprioceptive ataxia related to his diabetic peripheral neuropathy. He was noted to be unable to feel the ground beneath his feet, which limited his ability to drive. In a May 2012 rating decision, the AOJ granted entitlement to TDIU, effective January 20, 2010, due to his service-connected disabilities of "peripheral neuropathy, bilateral, upper and lower extremities." The rating decision specifically indicated that the Veteran's entitlement to TDIU was based upon his peripheral neuropathy. The Veteran's disabilities associated with his diabetes mellitus ("common etiology") had a combined rating of 70 percent, and thus met the requirements for a grant of TDIU based on these disabilities alone when considering them as "one disability." See 38 C.F.R. § 4.16. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114 (s). In Bradley, the Veteran had been in receipt of TDIU until the time at which he was awarded a 100 percent combined schedular rating. See, Bradley, 22 Vet. App. at 293. The Court determined, however, that "the Secretary should have assessed whether [the Veteran's] TDIU rating was warranted based on his PTSD alone before substituting a combined total rating for his TDIU rating." Id. at 294. The Court reasoned that "a TDIU rating for PTSD alone would entitle [the Veteran] to SMC benefits as an additional benefit not otherwise provided to persons with a 100 [percent] combined rating." Id. Accordingly, under Bradley, VA should potentially consider whether TDIU is warranted for a particular service-connected disability even when a schedular 100-percent rating is already in effect for other service-connected disabilities in order to determine the veteran's eligibility for SMC under section 1114(s). Id. However, TDIU rating based upon multiple disabilities does not meet the requirement of a "single disability" requirement of 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242 (2010) ("The Court holds that a total disability rating based on individual unemployability that is based on more than one underlying disability does not satisfy the first requirement of section 1114(s) that a claimant have 'a service-connected disability rated as total.'"). The Court in Buie noted that TDIU may satisfy the statutory requirements that a disability be "rated as total," but that the "award of a total disability rating based on individual unemployability cannot meet the statutory requirement for 'a service-connected disability' because it is not a disability, but rather a rating." Buie at 246 (emphasis in original). In Bradley, the Court was concerned with disabilities being counted twice if they were used for both entitlement to TDIU and in combination for entitlement to SMC(s). This would not be the case here, as the Veteran's 70 percent rating for PTSD is a completely separate disability from his diabetes mellitus and peripheral neuropathies. The Board notes that the Court did not specifically address the fact pattern in the instant case in Bradley or Buie. In neither case was the Court specific about the interplay of entitlement to TDIU based on disabilities of a common etiology being considered "one disability" for the purposes of meeting the rating requirements for schedular TDIU and entitlement to SMC (s) based on the need for "a single disability" rated at 100 percent. However, the Board need not consider this novel interpretation, and will instead focus on if the requirements of SMC(s) can be met through a different configuration of the Veteran's disabilities. Specifically, the Board finds that the Veteran's PTSD alone warrants entitlement to TDIU such that his combined diabetes mellitus and peripheral neuropathies (with resultant rating greater than 60 percent) allows for a grant of SMC at the housebound rate. In March 2010, the Veteran participated in a private psychological evaluation. His wife was additionally interviewed. His wife felt that he was "struggling" and that his behavior was "withdrawn and internalizing many feelings." He had significant sleep disruption, with difficulty sleeping for any length of time. His sleep impairment was also noted during VA examinations in 2009 and 2012, where he noted he slept 4.5 hours a night on average, with the need for a daily nap. The Veteran's wife stated the Veteran had flashbacks, specifically on holidays related to service (Veterans Day, Memorial Day, and Independence Day). She also noted that the Veteran always carried his gun with him. His gun was in the car in the parking lot at the time of the examination. She stated that he would sometimes "palm" his gun while walking downtown. She felt he was obsessive with checking the locks on the house at night. She also noted that he avoided interacting with her children. She stated that although the Veteran missed his job, he had difficulties whenever his job involved dealing with animal or medical refuse, which triggered memories. The examiner noted during the interview of the Veteran that it was difficult for him to talk about his situations, and that he was apprehensive of the interview itself. The examiner noted that it was "obviously provoking anxiety" for the Veteran to relate the incidents which resulted in his PTSD. He reported he continued to suffer flashbacks, generally in connection with loud noises and certain smells. He also stated that he was "always seeing people blown to bits, picking up people who have lost an arm, etc." He also frequently had nightmares of being shot at by snipers. He reported a history of more than 30 jobs post service. He changed jobs frequently due to clashes with supervisors where he would lose his temper and "start to cuss." The triggers for conflicts with supervisors were often minor altercations where the supervisor would request that the Veteran do something that the Veteran felt was unreasonable. His last employment had lasted for 10 years, until he had a work-related injury to his left shoulder in 2009. The Veteran has one daughter, but he has limited contact with her, but saw her most recently the year prior at her mother's funeral. He had two siblings with whom he also had minimal contact. The 2010 evaluation, as well as the 2009 and 2012 VA examinations, noted that the Veteran has an alcohol use problem. He would binge drink on the weekends but would also drink alcohol to help him with nightmares. It was again noted that the Veteran's chronic sleep impairment generally resulted in him sleeping for no more than 3 hours at a time. The Veteran also related that he was unable to sleep without his gun nearby. The psychologist diagnosed PTSD, mood disorder, and alcohol abuse. He was assigned a GAF score of 48 for serious symptoms with obsessive rituals, frequent job changes, and a history of broken relationships. As noted above, the Veteran's education level was that of a high school diploma and one year of cosmetology school. His work background has been limited to physical jobs, generally factory, custodial, and truck driving. His PTSD symptoms result in irritability, severely diminished sleep, alcohol use, easy startle response, and obsessional rituals related to his safety (checking locks and carrying a gun). Resolving reasonable doubt in the Veteran's favor, his PTSD limited his employment opportunities in working with the public or others, as well as limiting his employment opportunities related to a need for focus. The Veteran's severe sleep impairment would be hazardous in a job related to driving or operating machinery. The Board finds that the Veteran's PTSD alone, in consideration of his education and limited physical work history, render him unemployable for the period beginning January 20, 2010. The Veteran's PTSD meets the schedular requirements for TDIU (70 percent rating), effective January 20, 2010. As the Board has determined that the single disability of PTSD warrants entitlement to TDIU (100 percent rating), and the Veteran has additional disabilities rated at 60 percent or higher (disabilities associated with his diabetes mellitus result in a rating greater than 70 percent), he meets the statutory requirements of entitlement to SMC(s). Entitlement to SMC at the housebound rate is warranted. ORDER SMC at the housebound rate is granted from January 20, 2010, subject to the regulations pertaining to the payment of monetary benefits. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs