Citation Nr: 21004598 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-42 077 DATE: January 27, 2021 ORDER Special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s service-connected acquired psychiatric disorder standing alone supports an award of a total disability rating based on unemployability due to service-connected disability (TDIU). 2. Throughout the appeal period, the Veteran’s remaining separate and distinct disabilities result in a combined evaluation of at least 60 percent. CONCLUSION OF LAW The criteria of a single disability rated as total and an additional disability ratable as at least 60 percent for SMC have been met. 38 U.S.C. §§ 1114(s), 1155, 5107; 38 C.F.R. § 3.102, 3.321(b), 3.350, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1979 to December 1987. This matter was previously denied by the Board in January 2020. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) which, pursuant to a Joint Motion for Partial Remand (JMPR), vacated and remanded the decision for further development in a September 2020 order. The Board notes that although a specific claim for SMC was submitted in August 2016, the Veteran submitted a claim for increased ratings for his service-connected disabilities received on March 30, 2015. SMC is an issue within a claim for an increased disability rating that must be inferred by VA. See Akles v. Derwinski, 1 Vet. App. 118 (1991). As such, entitlement to SMC will be considered as of that date. The Board recognizes that the Veteran’s representative has posited that SMC should be awarded throughout the entire period of TDIU entitlement, running from July 14, 1998. However, entitlement to TDIU was granted in a January 2000 rating decision. The Veteran did not timely appeal and that decision is therefore final. See 38 C.F.R. § 3.109. The March 2015 claim was the next subsequent claim for increased benefits. As such, entitlement to SMC prior to March 30, 2015, is not currently before the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). SMC under 38 U.S.C. § 1114(s) is granted. SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated under the Rating Schedule. SMC is payable at the housebound rate where a veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a 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. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Board notes at the outset that the Veteran indicated in an August 2016 letter that he was not seeking SMC on the basis that he is permanently housebound. Indeed, the evidence of record would not support such a finding. For instance, he reported to a July 2015 VA examiner that he left the house every day, went outside, walked to the store, went on errands, and went to appointments. While at home, he did cleaning, building models, and working around the house. He stated to a May 2019 examiner that he enjoyed going to 12-step retreats, going for walks, going to movies, and taking care of his house. As such, entitlement to SMC based on having a single 100 percent disability and additional 60 percent disabilities will only be considered herein. Although the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the veteran’s remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (nothing that combined ratings to satisfy the second requirement but not the first). Moreover, “section 1114(s) does not limit “a service-connected disability rated as total” to only a schedular rating of 100%, and the Secretary’s current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating.” Id. at 293. However, because TDIU is merely a rating, not an actual disability, and because it can be assigned based upon multiple service-connected disabilities, it does not always satisfy that element. Rather, to qualify as a single disability rated as total, the Court held that an award of TDIU must be based on one service-connected disability standing alone. See Buie v. Shinseki, 24 Vet. App. 242 (2010). Nevertheless, the Court further held that regardless of how many disabilities were considered when TDIU was initially awarded, if any one of those conditions could warrant an award of TDIU standing alone, then the 100 percent rating for SMC is satisfied. Id. at 250. With respect to SMC(s) and TDIU, this means that the Board is obligated under Buie to assess whether a veteran’s TDIU could be supported by any one of his service-connected disabilities standing alone. TDIU may be assigned 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 service-connected disabilities. The Veteran was awarded a TDIU effective July 14, 1998, based on his service-connected disabilities of an acquired psychiatric disorder, including bipolar and cyclothymic disorder, at 50 percent and HIV/AIDS at 30 percent. Subsequently, service connection was granted for migraine headaches at 30 percent, low back strain at 20 percent, pseudofolliculitis barbae (PFB) at 10 percent, traumatic brain injury (TBI) at 10 percent, and right knee strain, residual scar status post left breast/mastectomy, and pityriasis rosea/dermatitis all at a noncompensable rate, effective March 30, 2015. The rating for the Veteran’s psychiatric disorder was also increased to 70 percent, effective March 30, 2015. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Concerning the economic component, the Veteran has a high school education and has undergone additional training in environmental services and automotive washer and detail work through VA programs. His military occupational specialties were pressure-fired boiler operator and automatic combustion control console operator. Following discharge, he worked as an engineer at a shipyard where he performed mechanical repairs for approximately two years. He then worked for approximately four years as an engineer in power plants with electrical distribution. He indicated that his last employment was as a floating engineer with a school district where he mainly identified maintenance issues at various schools but only made small repairs and otherwise contracted with other companies. He stated at one point that he last worked full-time in 1992 but continued to work part-time through 1997. He told examining clinicians that he also was employed doing construction work from approximately 1992 to 1993. He was last employed as a cleaner for a school district which he discontinued in March 1998. He noted to a May 2019 VA examiner that he last worked in 2002 as an engineer with a school district. Since then, he had done odd jobs and was reportedly interested in returning to work. The Veteran began a VA work therapy program in January 2016 sanitizing high-touch surfaces in waiting areas 16 hours per week. A November 2016 VA treatment record noted that he had been doing off the books work until July 2016 but had not had a regular job since 1999. As such, from an economic perspective, the Veteran has the education, skills, work history, and vocational training to perform work including engineering work, boiler and combustion control operation, construction, and janitorial work. Concerning the noneconomic component, the Veteran and his representative have contended on various occasions that either his service-connected psychiatric disorder or HIV/AIDS have on their own rendered him unemployable. He was granted Social Security Administration (SSA) disability benefits effective, March 31, 1993, due to a primary diagnosis of symptomatic HIV infection and a secondary diagnosis of wasting syndrome. He indicated on his October 1998 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, that he left his last cleaning position due to an inability to work due to prolonged standing. He told VA clinicians in December 2015 that he left his engineer job due to migraines and intermittent back issues. He left his job with the school district due to a problem with heights. He noted to a May 2019 VA examiner that he ended his work as an engineer with a school district due to problems with his service-connected HIV/AIDS. Additionally, multiple VA examinations and a private opinion are of record discussing the functional impact of his various disabilities. Regarding the Veteran’s psychiatric disability, a July 2015 VA examiner determined that the condition resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. He was diagnosed with bipolar I disorder, recurrent, moderate, and associated alcohol and cocaine use disorder. His disability resulted in alternating depressive and manic episodes. Depressive episodes consisted of sadness, loss of interest in activities, crying spells, sleep disturbance, alternating psychomotor agitation and retardation, low energy, excessive guilt, and recurrent thoughts of death. The Veteran reported that he did not have difficulty completing tasks at home due to symptoms of depression. Manic episodes consisted of inflated self-esteem/grandiosity, decreased need for sleep, increased talkativeness, pressured speech, flight of ideas, distractibility, increased goal-directed activity, and excessive involvement in pleasurable activities which may have negative consequences. Other relevant psychiatric symptoms included depressed mood, suspiciousness, and chronic sleep impairment. Since ceasing use of alcohol and cocaine, the Veteran stated that he was reliable. Mental health symptoms were deemed to not generally interfere with his ability to complete limited tasks at home. The examiner stated that if the Veteran were to attempt to return to work, it would be expected that he would experience at least a moderate level of occupational impairment due to moderate symptoms of bipolar disorder. A May 2019 VA examiner determined that the Veteran’s psychiatric disability was more accurately diagnosed as cyclothymic disorder than bipolar disorder and that this reflected an improvement in symptoms. He experienced hypomanic symptoms and depressive symptoms over the prior two years that did not meet the diagnostic criteria for a hypomanic or depressive episode. His disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. His associated substance use disorder in early remission did not by itself cause any occupational or social impairment, but if the Veteran were to begin using again, it would result in rapid impairment. It was noted that he was socially active and was looking forward to going back to work at some point. The examiner stated that his cyclothymic disorder would affect his ability to sleep and he might find it hard to maintain a consistent work schedule. His associated symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. A private vocational assessment was conducted in October 2019. The Veteran described his bipolar disorder as resulting in having difficulties getting along with others, feelings of isolation, varying energy levels, and substance abuse exacerbated by stress. During phases of depression, he withdrew and preferred to be alone. He had periods where he felt normal and socialized with family and friends but also periods of extreme isolation, approximately 6 times per year. He cycled between depressive and manic symptoms, with depression lasting about 2 weeks followed by a manic state for approximately 5 to 7 days. During depressed cycles, he would be isolated and sleep for extended periods of time, such as more than 12 hours per day. With extreme depression, he also experienced substance abuse. He described having extended periods of abstention from substances followed by 1 to 2 days of binge use during extreme depression. During manic cycles, he would stay awake until hitting complete exhaustion, managing only 3 to 4 hours of sleep per night. He felt that if he were to attempt to work a full-time job, he would not be able to work for two weeks at a time due to such cycles. When he was working full-time, he reported feelings of inadequacy and periods of extreme depression at least once per month, resulting in excessive lost time. The private clinician determined that based on his bipolar disorder alone, the Veteran would be unable to secure and follow substantially gainful employment. In support, she listed the notations in the July 2015 and May 2019 VA examinations regarding functional impact. She also stated that his periods of extreme isolation would make adhering to a normal work schedule difficult and his varying depressive and manic cycles would cause difficulties due to inconsistent energy levels, motivation, and sleep. Even further unreliability would result when extreme depression lead to substance abuse. The clinician described the Veteran’s past work as skilled and semi-skilled and found that he did not have any skills that would readily transfer into other substantially gainful employment. Regarding the Veteran’s HIV/AIDS disability, an evaluation conducted prior to the appeal period by an SSA examiner determined that he experienced bouts of diarrhea and weight loss due to HIV/AIDS. He concluded that the Veteran had a limited ability to stand up for long periods of time and to perform heavy physical activities such as lifting, carrying, pushing, and pulling heavy loads. Regarding the Veteran’s migraine headaches, a July 2015 VA examiner determined that the functional impact included distractibility during headaches. The Veteran had to avoid the glare caused by bright and sunny days and used photo-grey lenses in his glasses. Regarding the Veteran’s low back disability, at a July 2015 VA examination, he stated that the condition limited his ability to bend, lift, and twist, due to a combination of pain and stiffness. He stated that the limitations were worse with repetitive use over time and during flare-ups. Regarding the Veteran’s PFB, a July 2015 examiner stated that the condition limited his ability to shave. Regarding the Veteran’s TBI, a July 2015 psychiatric examiner found that no part of his social or occupational impairment was attributable to TBI. Another VA examiner determined that 75 percent of the Veteran’s mental health symptoms appeared to be due to bipolar disorder whereas 25 percent of such symptoms were due to TBI residuals. At a May 2019 psychiatric examination, it was noted that TBI residuals did not appear to be affecting the Veteran’s functioning. Regarding the Veteran’s right knee strain, at a July 2015 VA examination, he stated that the condition limited his ability to bend, lift, kneel, squat, and twist, due to a combination of pain and stiffness. He reported that the limitations were worse with repetitive use over time and during flare-ups. No functional limitations have been demonstrated throughout the record as the result of the Veteran’s scar and pityriasis rosea/dermatitis. Based on the foregoing, the Board finds that the Veteran would not be precluded from maintaining substantially gainful employment by reason of his HIV/AIDS, migraine headaches, low back disability, PFB, TBI, right knee strain, scar, or pityriasis rosea/dermatitis when considered alone. The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray v. Wilkie, 31 Vet. App. at 58. Although his HIV/AIDS resulted in wasting syndrome and was noted to limit prolonged standing and lifting, carrying, pushing, and pulling heavy loads, it would not on its own preclude all types of employment for which the Veteran is qualified. Although he could not engage in more physical engineering work, many activities, such as monitoring gauges such as he did at the power plant or identifying needed repairs and contracting out repair work such as he did for the school district would not be precluded by his inability to engage in heavy physical labor or prolonged standing. Further, although his low back disability has been determined to limit his ability to bend, lift, and twist, it would not on its own preclude all types of employment for which the Veteran is qualified. Although he may not be able to engage in extremely physical repair work as an engineer, he would be able to fulfill the duties of his prior positions at the power plant or school district or could engage in light cleaning such as done through his work therapy program. For the types of work for which the Veteran has experience, a limited ability to shave would not be disqualifying. He would be able to engage in engineering work, boiler and combustion control operation, construction, and janitorial work without limitation. Although his right knee strain was determined to limit his ability to bend, lift, kneel, squat, and twist, again, he could engage in the less physically-demanding types of work he did at the power plant, school district, or in his work therapy program. As such, his right knee strain alone does not render him unable to obtain or maintain substantially gainful employment. The Veteran’s TBI, scar, and pityriasis rosea/dermatitis have not been determined to have any functional impact and as such, none of the conditions alone would preclude employment. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. No mental ability factors are raised by the Veteran’s service-connected HIV/AIDS, low back disability, PFB, TBI, right knee strain, and pityriasis rosea/dermatitis. Although the Veteran’s migraine headaches increased distractibility during headaches and bright light bothered him, the overall impact is not severe enough to preclude all employment for which he is qualified. Indeed, it has been determined that he has prostrating attacks on average once per month only and they have not been found to be capable of producing severe economic inadaptability. As such, although his migraine headaches would have a functional impact, they would not, on their own, completely preclude gainful employment. However, the Board finds, affording the Veteran the benefit of the doubt, that his psychiatric disorder would on its own render him unable to obtain or maintain substantially gainful employment consistent with his skills, training, and experience. The mental ability factors noted in Ray of memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity would be significantly impacted by the Veteran’s depressive and manic cycling and associated substance abuse. The examinations and medical treatment records in the claims file demonstrated that the Veteran’s depressive episodes resulted in low energy and interest in activities, excessive sleep, isolating behavior, and a return to substance use. His ability to engage in his prior occupations in engineering work, boiler and combustion control operation, construction, and janitorial work would be significantly impacted by such symptomology, such as being able to adhere to a normal work schedule, to work with complex machinery, and to engage with coworkers or supervisors. His manic episodes, resulting in distractibility, excessive involvement in pleasurable activities, and very limited sleep, would result in further unreliability. Although the severity of the Veteran’s psychiatric symptomology has varied significantly during the appeal period, between fluctuating levels of energy, motivation, concentration, and sleep caused by the depressive and manic cycles, and the added unpredictability of when he may lapse into substance use, the Board finds that he would be precluded from the types of work for which he has the skills, training, and experience by reason of his psychiatric disability alone. As such, his TDIU qualifies as a single disability rated as total. His remaining separate and distinct disabilities together result in a combined evaluation of 70 percent. As such, entitlement to SMC based on a single service-connected disability rated as 100 percent and additional service-connected disabilities independently ratable at 60 percent is warranted. Neither the Appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, Associate 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.