Citation Nr: 19115166 Decision Date: 03/01/19 Archive Date: 02/28/19 DOCKET NO. 14-26 155 DATE: March 1, 2019 ORDER For the entire period on appeal, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. Entitlement to special monthly compensation (SMC), to include pursuant to 38 U.S.C. § 1114(s), is denied. FINDINGS OF FACT 1. The Board finds that the medical and lay evidence reasonably shows that, by virtue of his service-connected posttraumatic stress disorder (PTSD), the Veteran is precluded from maintaining regular substantially gainful employment. He currently meets the schedular requirement for TDIU. As an initial matter, the Board notes that the Veteran is in receipt of Social Security Administration (SSA) disability benefits since January 2001 based on several of his service-connected disabilities. While not binding, the SSA’s determination as to his employability is relevant evidence. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA’s favorable determination, while probative evidence to be considered in a claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). Specifically, SSA found that the Veteran’s combined impairments limited him to sedentary unskilled work activity, that he has a vocational background in semi-skilled to skilled activity, and that these skills are not transferrable. A June 2012 VA PTSD examiner determined that, due to his depression and anxiety, the Veteran has trouble functionally being around people and with focusing and completing tasks. A May 2018 private vocational expert determined that the Veteran has been disabled from the workforce since November 17, 2010, finding that his impaired sleep would impede on a regular work schedule; that his hypervigilance would make it difficult for him to work in an open area; that he has difficulty forming relationships in the workplace; and that his difficulty concentrating would make learning any new information difficult. She further found that the Veteran is unable to concentrate and focus on work due to anxiety, is prone to outbursts of anger, and would require a job that would allow him to work alone or the ability to walk off the job when angered. “These PTSD limitations, in combination, would lead to absences from work that would exceed employee tolerance.” The vocational expert determined that the Veteran’s PTSD would not allow him to work in any type of sedentary employment given such limitations. The Board notes that several VA examinations have concluded that the Veteran is not limited in his employability. See August 2017 VA examinations (finding, verbatim across several examinations, that the Veteran is capable of “arduous/unlimited work, sedentary work lifting/carrying, push/pull, bending/twisting, kneel/squat, stand, sit, climb, drive and/or walk grasping/gripping, reaching overhead and[/]or keyboarding.”). Specifically, the August 2017 PTSD VA examiner concluded that the Veteran is able to work in a loosely supervised and supportive environment without contact with the public, other workers, or supervisors and is restricted from working in a confined space such as a small office or cubicle, while also noting his intolerance of close supervision or criticism, his distrust of authority and intolerance of having his own authority questioned, and his intolerance of confrontation with customers, coworkers, and supervisors. The Board finds that this type of employment would be, at best, difficult, and at worst, impossible, to find. The Board also notes that while the Veteran has reported engaging in a few volunteer activities, such activities appear to be in protected environments. Thus, they cannot be used as evidence to show that he is capable of substantially gainful employment. Accordingly, in light of the foregoing, and resolving reasonable doubt in the Veteran’s favor, as required, the Board finds that a TDIU rating is warranted. 2. In light of the grant of TDIU for the entire period on appeal, the Veteran has one single service-connected disability rated at 100 percent; however, his additional service-connected disabilities are not independently ratable at 60 percent or more. Additionally, he has not asserted or been shown to be bedridden or housebound. CONCLUSIONS OF LAW 1. For the entire period on appeal, a schedular TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for entitlement to SMC, to include pursuant to 38 U.S.C. § 1114(s), have not been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1971 to May 1991. In a July 2018 decision, the Board restored the Veteran’s 70 percent rating for posttraumatic stress disorder (PTSD) and denied a rating in excess of 70 percent for PTSD. In its decision, the Board noted that TDIU was granted effective August 3, 2017, but did not address whether the Veteran was entitled to TDIU prior to that date. The Veteran, through his attorney, has argued that the Board should have addressed his entitlement to TDIU prior to August 3, 2017. The Board agrees and issues this supplemental decision (while not disturbing the findings of its original July 2018 decision addressing the Veteran’s PTSD rating). For the reasons discussed above, a TDIU rating is warranted for the entire appeal period. Entitlement to SMC is denied. Given the Board’s grant of a TDIU rating for the entire period on appeal, the Board must also consider whether the Veteran is entitled to SMC benefits at the housebound rate, pursuant to 38 U.S.C. § 1114(s), to fulfill VA’s “well established” duty to maximize the Veteran’s benefits. 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”). SMC is payable at the housebound rate where, in relevant part, the Veteran has a single service-connected disability rated at 100 percent, and has additional service-connected disability or disabilities independently ratable at 60 percent or more, or by reason of such service-connected disability or disabilities is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). This housebound requirement is met when the Veteran is substantially confined as a direct result of service connected disability(ies) 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 service connected 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). 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 SMC. Under subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which are rated at 100 percent disabling. However, a TDIU rating may satisfy the “rated as total” element of section 1114(s) if TDIU was awarded for a single, distinct service-connected disability. See Buie, 24 Vet. App. at 250-51. Although PTSD has not been granted a schedular 100 percent rating, the Board decision above granted a TDIU rating for the entire period on appeal based on the manifestations of that sole disability. Thus, for SMC purposes, PTSD satisfies the requirement of a “service connected disability rated as total.” Id. at 251; see also Bradley, 22 Vet. App. at 293. However, he does not have additional service-connected disability or disabilities independently ratable at 60 percent or more. [CONTINUED ON NEXT PAGE]   Further, the Veteran has not asserted that he is bedridden, housebound, or in need of regular aid and attendance due to his service-connected disabilities, and the evidence does not support the same. See 38 U.S.C. § 1114. VA treatment records do not indicate that he is bedridden, or housebound, and he has not asserted the need for regular aid and attendance. Should the Veteran’s circumstances change, he is free to file a claim for SMC. However, given the lack of evidence or assertion that he is currently bedridden, housebound, or in need of regular aid and attendance, entitlement to SMC must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel