Citation Nr: 21064707 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-17 973 DATE: October 21, 2021 ORDER Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), prior to February 14, 2017, is denied. Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 prior to April 29, 2014 is denied. FINDINGS OF FACT 1. Prior to February 14, 2017, the Veteran was not in receipt of a total disability rating based on individual unemployability (TDIU) based on a single disability. 2. Prior to April 29, 2014, the Veteran did not have a permanent and total service-connected disability. CONCLUSIONS OF LAW 1. The criteria for special monthly compensation based on one service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more (housebound rate), prior to February 14, 2017, have not been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. 2. The criteria for an effective date prior to April 29, 2014, for the grant of eligibility to DEA under 38 U.S.C., Chapter 35 are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to June 1977. An August 2019 decision of the Board of Veterans' Appeals (Board) remanded the Veteran's claim for a total disability rating based on individual unemployability (TDIU). Subsequently, an August 2020 rating decision granted the Veteran TDIU. The VA regional office (RO) granted the TDIU effective from the date of claim, April 29, 2014. As the Veteran was awarded the full benefit and he has not disagreed with the award, the claim for TDIU is considered fully granted and no longer in appellate status before the Board. The August 2019 Board decision also remanded a claim for service connection for dizziness. An April 2021 rating decision granted this claim. Accordingly, the claim for service connection for dizziness is no longer in appellate status before the Board. 1. Entitlement to SMC prior to February 14, 2017. In this case, in a February 2017 rating decision, the RO granted SMC under 38 U.S.C. § 1114(s) based on a cardiac disorder rated at 100 percent from February 14, 2017, and additional service-connected disability independently ratable at 60 percent or more. The Veteran's attorney asserted in April 2021 that if the Veteran is granted TDIU, the Veteran should be granted SMC prior to February 14, 2017, based on the Veteran having other disabilities which combine to over 60 percent. Subsequently, the Veteran was granted TDIU, effective April 29, 2014. SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and (1) has 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, 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)(2). A TDIU rating can qualify for SMC compensation at the 38 U.S.C. § 1114(s) rate, but only if the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). It appears from the attorney's contentions that he asserts that prior to February 14, 2017 the Veteran should be assigned TDIU solely for one of his service-connected disabilities that was rated at 60 percent or higher. If TDIU were granted solely for one of the disabilities rated at 60 percent or higher, prior to February 14, 2017, the Veteran would be entitled to an earlier effective date for SMC at the 1114(s) rate. That is because he would have TDIU for one disability and also have other service-connected disabilities which combined to 60 percent or more. Prior to February 14, 2017 the Veteran had a 70 percent rating in effect for a psychiatric disability, a 60 percent rating in effect for a cardiac disability, and a 60 percent rating in effect for a kidney disability. The remainder of his service-connected disabilities had ratings below 60 percent. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disability is sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. A total disability rating may be assigned where the rating for the Veteran's service-connected disability is less than total if the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. The Board must therefore determine whether the Veteran was entitled to TDIU solely due to his psychiatric disability, or solely due to his cardiac disability, or solely due to his kidney disability, prior to February 14, 2017. Prior to February 14, 2017 the Veteran had a 70 percent rating assigned for his adjustment disorder with mixed anxiety and depressed mood. The evidence of record prior to February 14, 2017 fails to show that the Veteran was unable to follow a substantially gainful occupation due to his psychiatric disorder. On VA examination in May 2015 the VA examiner indicated that the Veteran's psychiatric symptoms only caused mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. This clearly indicates that the Veteran was not unemployable solely due to his service-connected psychiatric disability. The Veteran's VA treatment records dated prior to February 14, 2017 also do not indicate that the Veteran was unemployable solely due to his psychiatric symptoms. These records note that the Veteran was taking Zoloft for treatment of depression, but do not indicate that the Veteran was unemployable solely due to his service-connected psychiatric disability. These include November 2015 screening notes stating that the Veteran denied suicidal/homicidal ideation. The examiner further noted that the Veteran was not gravely disabled due to a mental disorder. Based on the above the Board finds that the Veteran was not entitled to TDIU solely due to his service-connected adjustment disorder with mixed anxiety and depressed mood prior to February 14, 2017. The Veteran had a 60 percent rating assigned for his hypertensive cardiomyopathy and coronary artery disease prior to February 14, 2017. The evidence or record prior to February 14, 2017 fails to show that the Veteran was unable to follow a substantially gainful occupation due to his cardiac disability. On VA examination in September 2015 the VA examiner indicated that the Veteran's hypertension did not impact his ability to work. An April 2013 VA examination report states that there was no objective evidence of cardiac disease and that the Veteran's hypertension did not impact his ability to work. The VA treatment records also do not indicate that the Veteran was unemployable due to his cardiac disability prior to February 14, 2017. Based on the above, the Board finds that the Veteran was not entitled to TDIU solely due to his service-connected hypertensive cardiomyopathy and coronary artery disease prior to February 14, 2017. The Veteran had a 60 percent rating assigned for his service-connected chronic kidney disease prior to February 14, 2017. The evidence or record prior to February 14, 2017 fails to show that the Veteran was unable to follow a substantially gainful occupation due to his kidney disability. On VA examination in September 2015 the Veteran had no kidney related complaints and the VA examiner indicated that the Veteran's kidney condition did not impact his ability to work. The VA treatment records also do not indicate that the Veteran was unemployable due to his kidney disability prior to February 14, 2017. Based on the above the Board finds that the Veteran was not entitled to TDIU solely due to his service-connected kidney disability prior to February 14, 2017. The Board finds that none of the evidence of record reasonably indicates that the Veteran's psychiatric disability, cardiac disability or kidney disability, considered alone, rendered him unemployable prior to February 14, 2017. The Veteran was not totally disabled due to a single service-connected disability prior to February 14, 2017. Consequently, the Veteran did not meet the criteria for SMC under 38 U.S.C. § 1114(s) prior to February 14, 2017 and an effective date prior to that date is not warranted. 2. Entitlement to DEA benefits prior to April 29, 2014. The August 2019 Board decision remanded the claim for entitlement to DEA benefits prior to February 14, 2017 because it was inextricably intertwined with other remanded issues. An August 2020 rating decision granted the Veteran an earlier effective date of April 29, 2014 for DEA benefits. As explained below, an effective date prior to April 29, 2014 is not warranted. Basic eligibility for Chapter 35 benefits is established in one of several ways: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. § 3.807. In August 2020, the Veteran was granted eligibility to DEA benefits from April 29, 2014, based on a finding that he became permanently and totally disabled on that date, in light of his contemporaneous TDIU award. As this effective date was directly predicated on a finding that the Veteran had permanent and total disability due to service-connected disabilities, it is the earliest possible date he could have established eligibility for DEA benefits on that basis. There is no other basis by which such eligibility could be established prior to April 29, 2014. As the Veteran was alive, the conditions relating to service-connected death or existence of a permanent total service-connected disability at death do not apply. See 38 C.F.R. § 3.807(a)(3)-(4). The only remaining basis for eligibility requires, as a threshold matter, be currently on active duty, which he was not. See 38 C.F.R. § 3.807(a)(5). Consequently, there is no other basis upon which any eligibility for DEA benefits could be established prior to April 29, 2014. Therefore, the Board finds that April 29, 2014 is the earliest possible effective date for an award of DEA benefits, and an earlier effective date for such benefit is also not warranted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.