Citation Nr: 21003620 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-14 070 DATE: January 22, 2021 ORDER Special monthly compensation under 38 U.S.C. § 1114 (s)(1) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran has been granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) solely based on service-connected posttraumatic stress disorder (PTSD), with additional service-connected disabilities evaluated as at least 60 percent disabling under the combined ratings table. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation under 38 U.S.C. § 1114 (s)(1) have been met. 38 U.S.C. § 1114 (s)(1); 38 C.F.R. § 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). In October 2010, the RO granted service connection for PTSD, evaluated as 30 percent disabling, with an effective date of July 7, 2010. The Veteran appealed the issues of entitlement to an earlier effective date for service connection and entitlement to an initial evaluation in excess of 30 percent. In April 2013, the RO granted the increased initial evaluation claim to the extent that it assigned a 70 percent rating, with an effective date of July 7, 2010. In May 2014, the RO denied a TDIU. In January 2016, the Board denied the claim for an earlier effective date for service connection and remanded the issues of entitlement to an initial evaluation in excess of 70 percent for PTSD and entitlement to a TDIU for additional development. In November 2019, the Board denied the claim of entitlement to an initial evaluation in excess of 70 percent for PTSD and granted the claim for a TDIU, to the extent that it granted a TDIU for the period from July 2010 to March 2013. The Board determined that since the Veteran had a combined rating of 100 percent as of May 9, 2016, his TDIU claim was moot as of that date. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, while his case was pending at the Court, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s November 2019 decision with regard to the issue of entitlement to a TDIU after May 9, 2016, to the extent that the Board failed to discuss whether the Veteran was entitled to SMC under 38 U.S.C. § 1114 (s)(1) as of that date. That same month, the Court issued an Order vacating the November 2019 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). In its November 2019 decision, the Board determined that since the Veteran is totally disabled as a result of his PTSD as of May 9, 2016, his claim for a TDIU was moot as of that date. Citing Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). The JMR does not take issue with this aspect of the Board’s decision, rather, the JMR states that, “[I]n making this finding, the Board failed to provide an adequate statement of reasons or bases because it did not discuss whether Appellant is entitled to special monthly compensation (SMC).” The JMR further states, “Ratable” in 38 U.S.C. § 1114(s) means “capable of being rated or estimated,” as opposed to actually rated.” Citing Gazelle v. Shulkin, 868 F. 3d 1006, 1011 (Fed. Cir. 2017). The JMR stated that on remand, the Board must consider whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114 (s)(1). The Court has held that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. at 280 (2008). In Bradley, the Court stated that a TDIU can qualify for compensation at the 38 U.S.C. § 1114 (s) rate, but only if the TDIU is based on a single disability. Id. At 293. Furthermore, entitlement to SMC based on § 1114 (s)(1) is an ancillary benefit, meaning it can be granted simply if entitlement is raised by the record. Id. Pursuant to 38 U.S.C. § 1114 (s), when a Veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to a SMC rating. 38 U.S.C. § 1114. Under 38 C.F.R. § 4.25, individual disability ratings are not simply added together, but combined according to the rubric outlined in the regulation. The combined rating then dictates the appropriate monthly compensation. The Veteran’s service-connected disabilities are as follows: PTSD, evaluated as 70 percent disabling, effective July 7, 2010, migraine headaches, evaluated as 50 percent disabling, effective May 9, 2016, a back disability, evaluated as 10 percent disabling from April 30, 2007 to May 8, 2016, and as 40 percent disabling thereafter, a left elbow disability, evaluated as 10 percent disabling, effective April 30, 2007, a right knee disability, evaluated as 10 percent disabling, effective April 30, 2007, a left knee disability, evaluated as 10 percent disabling, effective April 30, 2007, tinnitus, evaluated as 10 percent disabling, effective May 9, 2016, GERD, evaluated as 10 percent disabling, effective May 9, 2016, and traumatic brain injury, evaluated as noncompensable, effective February 24, 2010. A TDIU is in effect from July 7, 2010 to May 9, 2016. The Veteran’s combined rating is 80 percent effective July 7, 2010, and 100 percent effective May 9, 2016. The Board’s November 2019 decision shows that it determined that the Veteran met the criteria for a TDIU solely based on his PTSD. Therefore, he is considered to have a single disability rated as total for the purpose of qualifying for compensation at the 38 U.S.C. § 1114 (s)(1) rate. Bradley. Where, as here, a veteran has been awarded a TDIU rating (100 percent) based on one disability, he can meet the statutory criteria for entitlement to SMC if he has a separate disability rated at 60 percent or greater. Bradley. The “60 percent” requirement in 38 U.S.C. § 1114 (s) may be met by pooling multiple disabilities by using the combined ratings table in 38 C.F.R. § 4.25. Gazelle v. McDonald, 27 Vet. App. 461, 467 (2016). The Veteran’s ratings have been discussed. When his ratings for his service-connected disabilities, other than PTSD, are combined under 38 C.F.R. § 4.25, he is shown to have met the 60 percent requirement. Accordingly, the claim for SMC under 38 U.S.C. § 1114 (s)(1) is granted. A higher level of SMC is not warranted, as there is no evidence to show that the Veteran is housebound, that he requires aid and attendance, or that his disabilities result in loss of a limb, blindness, or deafness. See 38 U.S.C. § 1114 (h - r); (s)(2); 38 C.F.R. § 3.350. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.