Citation Nr: 18120642 Decision Date: 07/24/18 Archive Date: 07/24/18 DOCKET NO. 15-15 704 DATE: July 24, 2018 ORDER Entitlement to SMC pursuant to 38 U.S.C. § 1114(s)(1) for the rating period from January 14, 2003 to February 9, 2009 is denied. FINDING OF FACT For the rating period from January 14, 2003, to February 2, 2009, the Veteran did not have a single service-connected disability rated as total. CONCLUSION OF LAW The criteria for SMC at the (s) rate for the rating period from January 14, 2003, to February 2, 2009, have not been met. 38 U.S.C. § 1114 (s) (2012); 38 C.F.R. § 3.350 (i) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1977 to October 1990. This matter came before the Board of Veterans Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s representative submitted an October 2009 statement asking that SMC be granted effective January 14, 2003. A November 2009 rating decision granted SMC under 38 U.S.C. § 1114(s) effective February 9, 2009 as he met the schedular criteria for housebound benefits. The February 2011 rating decision then denied SMC for the period from January 14, 2003 to February 9, 2009. Entitlement to SMC effective January 14, 2003 under 38 U.S.C. § 1114(s)(1). The Veteran contends that he is entitled to SMC at the (s) rate effective January 14, 2003, as he was granted TDIU effective that date by a January 2006 rating decision. In a June 2016 statement, the Veteran’s representative further contended that both the Veteran’s heart condition and hepatitis C must be considered as making him unable to work beginning January 14, 2003. However, the Board notes that the question of eligibility for SMC under 38 C.F.R. § 1114(s) turns solely on the application of law as it is based on the Veteran’s assigned ratings, and the assigned rating for the Veteran’s heart condition and hepatitis C are not currently on appeal. While the Board will consider all the Veteran’s service-connected disabilities, the Board decision is limited to, and solely based on, the ratings currently assigned and their effective dates for the period in question. The question before the Board is whether the Veteran had a single service-connected disability rated as total, with an additional service-connected disability or disabilities independently ratable at 60 percent, as of January 14, 2003, or at any other time during the period on appeal. The Board concludes that the Veteran did not have a single service-connected disability rated as total from January 14, 2013 to February 2, 2009, and that entitlement to payment at the (s) rate during that period is therefore not warranted. 38 U.S.C. § 1114 (s). SMC is payable if a Veteran has a single service-connected disability rated as total, and has an 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. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i); see also Bradley v. Peake, 22 Vet. App. 280, 294 (2008). VA’s duty to maximize benefits requires it to assess all 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); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The 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 also be satisfied where a Veteran has been awarded TDIU for a single disability. See Bradley, 22 Vet. App. at 293. The Bradley decision also held that the direction to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) was specifically limited to TDIU ratings. A TDIU rating based on multiple service-connected disabilities does not satisfy the criteria of one total disability in considering entitlement to SMC under 38 U.S.C. § 1114(s). Id. at 290-91. The Court reiterated this interpretation in Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010) (“The Court today holds that a TDIU rating that is based on multiple disabilities cannot satisfy the section 1114(s) requirements of ‘a service-connected disability’ because that requirement must be met by a single disability.”). The Board finds that the Veteran does not have a 100 percent rating for any of his individual disabilities, including heart disease and hepatitis C, for the period from January 14, 2003 to February 9, 2009. During that period, the Veteran’s service-connected disabilities are rated as follows: tinea versicolor 60 percent, heart condition 30 percent, depressive disorder 30 percent, rheumatological disease 20 percent, hepatitis C 10 percent. The Veteran is also rated at 10 percent for diabetes mellitus April 4, 2005 to November 8, 2005, and at 20 percent thereafter, and has 20 percent ratings for bilateral lower extremity peripheral neuropathy effective January 18, 2006. A January 2006 rating decision granted TDIU for the period from January 14, 2003 to February 9, 2009. The Board finds that the grant of TDIU was based on the Veteran’s combined service-connected disabilities, rather than on the effect of any single disability. At the time of the decision, the Veteran was service-connected for his heart condition, rheumatological disease, his skin condition, diabetes mellitus and depression. The RO stated that while the Veteran was precluded from employment in his current field by hepatitis C, it was “recognized that the Veteran has a combined service-connected disability picture that is of a progressive nature.” The RO determined that the Veteran’s combination of disabilities made him unemployable and granted an effective date of January 14, 2003, the “date on which the Veteran’s overall service connected disabilities combined to make him unemployable.” The Board further notes that the lay and medical evidence of record regarding unemployability indicated that he was disabled due to multiple medical conditions and did not attribute unemployability to any single disability. The Veteran submitted a January 2003 statement that he could no longer work due to “all my medical conditions”, listing his heart condition, hepatitis C, carpal tunnel, low back disability, kidney disease and rheumatoid disease, as well as mental health issues. A December 2002 statement from a private physician stated that the Veteran was unable to work due to his issues of hypertension, renal disease and arthropathy. Another private provider submitted a December 2002 statement that he treated the Veteran for carpal tunnel, back issues and leg weakness, and recommended a change to less demanding employment that did not involve heavy lifting, pushing, pulling or repetitive hand movements. Finally, a June 2003 VA vocational rehabilitation letter stated that the Veteran would not benefit from vocational rehabilitation due to the “nature and severity of your chronic medical problems, and your overall physical health.” Given the clear language of the January 2006 rating decision and the lay and medical evidence of record, which attributes the Veteran’s unemployability to multiple disabilities, the Board finds that the RO’s decision clearly addressed the aggregate effect of the Veteran’s combined disability picture and that this combined picture was the explicit basis of the grant of TDIU. As noted above, an award of TDIU based on multiple disabilities does not meet the statutory requirement. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In his March 2015 formal appeal, the Veteran’s representative argued that his heart condition made him unemployable beginning January 14, 2003, stating that the Veteran was entitled to SMC as he had “a total rating” for his heart condition and a 60 percent rating for tinea versicolor. First, the Board notes that the Veteran is rated at 30 percent, not 100 percent, for his heart condition and that rating is not on appeal. The Board further notes that the Veteran’s heart condition was considered in the January 2006 rating decision but, as noted above, the grant of TDIU was not based on that condition alone. Moreover, the evidence cited in the January 2006 rating decision included a November 2000 cardiovascular examination and a July 2005 VA general medical examination. The November 2000 examiner noted some chest pain 4 to 5 times per week lasting for 3 minutes. The Veteran reported that he worked on his feet all day and walked a mile in the evenings. The December 2000 stress test ordered by the examiner had normal results and good exercise tolerance was noted. The July 2005 examiner found “no signs or symptoms that I can determine that would render him unemployable related to this condition.” The Board therefore finds that there is no indication that TDIU was granted solely due to the Veteran’s heart decision or that the evidence of record supported the conclusion that Veteran was unemployable solely due to his heart condition. A February 2011 rating decision granted service connection for hepatitis C effective November 30, 2001. In a June 2016 statement, the Veteran’s representative noted the RO’s statement in the January 2006 rating decision that, “the main disability precluding the Veteran from gainful employment in his chosen field” was hepatitis C. The representative argued that this statement indicated that the RO conceded that the Veteran was unemployable due to hepatitis C. The Board finds this argument to be an inaccurate characterization of the RO’s finding. While the RO correctly noted that the Veteran was precluded from his prior field of employment due to the infectious nature of his hepatitis C, it made no finding that hepatitis C, by itself, precluded employment in all other fields. The Board therefore finds that the RO’s statement did not constitute a finding that the Veteran was unable to secure and maintain all substantially gainful employment due to hepatitis C. Moreover, the December 2002 letter from the Veteran’s doctor regarding his employment and hepatitis C stated that he could not continue to work as a meat cutter due to the risk that he could transmit the disease to another employee if he were to be cut. The physician made no finding that the Veteran was prevented from performing other jobs. The Board also notes that the Veteran is rated at 10 percent for hepatitis C and that this rating was not appealed. At his January 2011 VA examination, the Veteran reported joint pain and fatigue but did not report incapacitating episodes or that he was on continuous medication or dietary restriction due to hepatitis C. The Board therefore finds that there is no evidence to support the conclusion that the Veteran has been found to be unemployable solely due to hepatitis C. Thus, the criteria for SMC at the (s) rate are not met from January 14, 2003, to February 9, 2009, as Veteran did not have a single service-connected disability rated at 100 percent during the period and the Veteran’s TDIU rating is based upon multiple service-connected disabilities and not a single service-connected disability rated as total. Accordingly, the appeal must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel