Citation Nr: A21018338 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 200519-85218 DATE: November 17, 2021 ORDER Entitlement to special monthly compensation based (SMC) on statutory housebound basis is denied. FINDING OF FACT The Veteran does not have any disability rated at 100 percent disabling, to include a single disability on which TDIU may be based. CONCLUSION OF LAW The criteria for entitlement to statutory special monthly compensation (SMC) under 38 U.S.C. § 1114(s) have not been met. 38 U.S.C. § 1114 (s)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1994 to August 2003. 1. Entitlement to special monthly compensation based (SMC) on statutory housebound basis, The Veteran contends he is entitled to special monthly compensation under 38 U.S.C. § 1114(s)(1), or rather on a statutory basis. To this end, the Veteran, through his representative, have explicitly noted that they are only seeking SMC on a statutory basis, and not based on actual, in fact, housebound status. As such, the Board shall only discuss the Veteran's eligibility to SMC on a statutory basis. Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable when a veteran has a service-connected disability rated as 100 percent and 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. 38 U.S.C. § 1114(s)(1). SMC under 38 U.S.C. § 1114(s) is also payable when a veteran has a service-connected disability rated as 100 percent and is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s)(2). This requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities 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 disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.§ 1114(s). However, the Court has held that a TDIU rating "that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of 'a service-connected disability' because that requirement must be met by a single disability." Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Therefore, it is necessary to determine first, if any one of the Veteran's service-connected disabilities meet the criteria for a TDIU. The Veteran's service-connected disabilities are as follows: posttraumatic stress disorder (70 percent), right shoulder (10 percent), left shoulder (10 percent), left elbow (10 percent), right elbow (10 percent), right knee (10 percent), left ankle (10 percent), and back (10 percent); the Veteran's remaining service-connected disabilities, to include for his right wrist, left knee, right foot, left heel, left toenail, and left cranial nerve, are all rate noncompensable throughout the claims period. As such, for the relevant period, the Veteran's combined disability rating has been at 90 percent. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). Here, in an August 2017 rating decision, the Veteran was granted a TDIU effective October 2008. A close review of that rating decision and determination, reveals that the RO noted explicitly that such grant of a TDIU was based on the evaluation of the totality of the Veteran's combined service-connected disabilities, and not exclusively on the Veteran's PTSD (his highest rated disability). As noted above, SMC on a statutory basis requires two parts, (1) a single disability rated at 100 percent, or a TDIU rating based on a single disability; AND (2) a combined 60 percent rating of the disabilities other than that rated at 100 percent or the basis for a TDIU. The Board finds a close review of the Veteran's service-connected disabilities reveals that neither criteria has been met by the Veteran's disabilities, based on the evidence of record. First, with regards to the 100 percent rating or TDIU, the Veteran, through his representative claims that the Veteran's TDIU was base exclusively on his PTSD, which is rated at 70 percent disabling. They argue that the Veteran's PTSD is the sole basis that prevents the Veteran from acquiring gainful employment, and as such, fulfills the criteria of the first element for SMC. The Board does not agree. Here, as an initial matter, the Board notes that the language of the August 2017 rating decision which granted the Veteran's claim for a TDIU is clear with regards to this matter. Specifically, the RO explicitly noted that the grant of a TDIU was not based solely on the Veteran's PTSD, but rather the consideration of the effects the service-connected disabilities had on his employment when viewed "collectively." The RO determined that the combined effects of the disabilities "demonstrated a level of impairment consistent with total occupational disability, at least to the extent that is no greater than marginal" employment. [emphasis added]. Therefore, the RO granted a TDIU from October 16, 2008. To this end, a close review of the Veteran's VA examinations, Social Security Administration (SSA) records, and treatment records, reveals a psychiatric condition that was not a total bar to employment by itself. A VA examination leading up to this determination in June 2016 noted that the Veteran's condition only manifested to be productive of occupational and social impairment with reduced reliability and productivity, and not a total impairment to social and occupational tasks. While the examiner noted some limitations affecting his potential employability, i.e. not working with the public or in teams, the examiner did not make any findings that the Veteran's psychiatric disability alone prevented the Veteran from obtaining or maintaining employment. Such determination is mirrored by prior examinations conducted in September 2013. With respect to his PTSD, the Board must find that the preponderance of the evidence is against finding that the condition alone causes unemployability. While the Board acknowledges that the VA examiner who evaluated the Veteran in June 2016 noted that the Veteran's condition may prevent him from establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances, the examiner's analysis did not conclude that such would be a bar to employment, without consideration of other disabilities. Even to this end, the Board notes that in that same report, the examiner noted that the Veteran had both good familial relationships, as well as close personal friends. The Board has considered the functional limitations caused by the Veteran's service-connected PTSD, but ultimately finds that although it affects his occupational functionality, a preponderance of the evidence is against finding that the condition alone precludes the Veteran from obtaining or maintaining gainful employment. Consequently, as the Veteran's PTSD is not, and has not been, rated at 100 percent, and such disability is not the sole basis for the grant of a TDIU, the Board must find that the first criteria for a SMC on a statutory housebound basis has not been achieved, and as such SMC is not warranted. However, even if the Board, in arguendo, conceded that TDIU was granted solely on the single PTSD disability, the second criteria for statutory SMC would also be not achieved by the Veteran's other service-connected disabilities. Here, separate from the PTSD, the Veteran's only compensable ratings are for his right shoulder (10 percent), left shoulder (10 percent), left elbow (10 percent), right elbow (10 percent), right knee (10 percent), left ankle (10 percent), and back (10 percent); with the other remaining conditions all rated noncompensable. As such, when combined, these ratings only account for a combined rating of 50 percent, which is short of the 60 percent requisite to warranted SMC on a statutory basis. Therefore, even if the Board conceded the Veteran's argument that his PTSD caused his unemployability, which it does not, the Veteran's claim would fail based on the second criteria for the remaining service-connected conditions. As the Board finds that the Veteran does not have any disability rated at 100 percent disabling, including a single disability on which TDIU may be based, the criteria for entitlement to 38 U.S.C. § 1114(s) are not met. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.