Citation Nr: 21064422 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 14-23 271 DATE: October 20, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for gastroesophageal reflux disease (GERD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to special monthly compensation (SMC) at the housebound rate, from July 13, 2019 and prior to July 16, 2019, is granted. FINDINGS OF FACT 1. The Veteran's GERD is manifested by persistent recurrent epigastric distress with dysphagia, pyrosis, and, regurgitation, accompanied by substernal pain and shoulder and arm pain productive of considerable impairment of health. 2. The Veteran was gainfully employed prior to July 13, 2019. 3. From July 13, 2019, the Veteran has been in receipt of a combined 100 percent schedular disability rating. 4. From July 13, 2019 and prior to July 16, 2019, the Veteran's PTSD is rated at 100 percent disabling and he has additional service-connected disabilities rated at least at 60 percent that are separate and distinct. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 30 percent, but no higher, for GERD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.114, Diagnostic Code 7346. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 3. From July 13, 2019 and prior to July 16, 2019, the criteria for SMC 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. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to February 1972. The Veteran appealed a December 2012 rating decision by the Agency of Original Jurisdiction (AOJ). In May 2021, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Pursuant to Diagnostic Code 7346, a 10 percent rating is assigned for two or more symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Id. The August 2021 examination report noted persistent recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances four or more times per year. See also July 2019 examination report. The Veteran stated in his January 2013 notice of disagreement (NOD) that he has consistent problems with waking up at night, burning in his throat and stomach, and pain in his left arm and shoulder. The November 2012 examination report additionally noted weight loss and nausea. Therefore, the Board finds the Veteran's GERD symptoms more closely approximates a 30 percent rating for the entire period on appeal. However, the Veteran's GERD does not warrant a higher rating. The medical evidence of record does not demonstrate the Veteran to have hematemesis, melena, nausea, or vomiting. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. During the period on appeal, the Veteran worked part-time as a driver earning $1,200 to $3,000 a month until October 2019. See October 2019 VA Form 21-8940 and VA Form 21-4192. Although the Veteran worked part-time, the Veteran was earning an annual wage which amounts to more than marginal employment. Although the Veteran may have had a brief period in between jobs from 2015 to 2016, he was quickly able to find a more lucrative position in 2016. The evidence also does not demonstrate that the Veteran worked in a protected environment. The Veteran indicated that his son gave him a driving position after his time as a real estate agent. Id. However, the record does not indicate that the Veteran's son gave him special treatment, decreased workload, or provided other accommodations due to the Veteran's service-connected disabilities. Therefore, the Board finds the Veteran was gainfully employed during the period on appeal prior to July 13, 2019 and the claim is denied. SMC The Veteran has a combined schedular rating of 100 percent from July 13, 2019. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent disabling 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). As noted above, the Veteran is in receipt of a 100 percent rating from July 13, 2019. He has been in receipt of SMC at the housebound rate from July 16, 2019. Pursuant to this decision, the Veteran's other service-connected disabilities combine to a rating of at least 60 percent for the entire period on appeal. As such, the Veteran is entitled to SMC at the housebound rate from July 13, 2019 until July 15, 2019. See 38 U.S.C. § 1114(s). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.