Citation Nr: 21074658 Decision Date: 12/16/21 Archive Date: 12/15/21 DOCKET NO. 19-10 117 DATE: December 16, 2021 ORDER The discontinuance of entitlement to special monthly compensation (SMC) based on housebound status pursuant to 38 U.S.C. § 1114(s) was proper. FINDING OF FACT From March 1, 2017 forward, the Veteran has at no point had other service-connected disability or disabilities ratable at 60 percent or more or been permanently housebound as a result of his service-connected disabilities. CONCLUSION OF LAW The discontinuance of entitlement to SMC based on housebound status pursuant to 38 U.S.C. § 1114(s) was proper. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.151, 3.155, 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in May 2016 the RO proposed to reduce the Veteran's rating for brucellosis from 100 percent to noncompensable and as a result also proposed to discontinue SMC pursuant to 38 U.S.C. § 1114(s), effective January 1, 2017. In October 2016 the RO then implemented a final reduction of the rating for brucellosis from 100 percent to noncompensable effective January 1, 2017. The RO then concurrently discontinued the Veteran's award of SMC pursuant to 38 U.S.C. § 1114(s) based on the fact that he no longer had a single disability rated at 100 percent and other separate disabilities ratable at 60 percent. The Veteran filed a notice of disagreement with the reduction in rating for brucellosis in December 2016, and submitted additional evidence. In a rating decision issued in July 2017, the RO stated that in light of the submitted evidence the Veteran's 100 percent rating would retroactively be restored from January 1, 2017 to March 1, 2017, with a noncompensable rating being reinstated as of March 1, 2017. Likewise, the award of SMC pursuant to 38 U.S.C. § 1114(s) was reinstated from January 1, 2017 to March 1, 2017, and then discontinued from March 1, 2017 forward. The Veteran filed a notice of disagreement as to the discontinuance of SMC under 38 U.S.C. § 1114(s) in July 2017, and later perfected an appeal of that issue to the Board in March 2019. The Board notes that the Veteran's December 2016 and July 2017 notices of disagreement also included the propriety of the reduction in rating for brucellosis, and that the Veteran subsequently and separately perfected an appeal of that issue in July 2017. However, that issue was the subject of a final Board decision in August 2018, which upheld the propriety of the reduction in rating for brucellosis. As such, that issue is not currently before the Board. 38 C.F.R. § 20.1100. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2021. A transcript of the hearing is of record. At the outset of the hearing, it was clarified that the Veteran's representative of record was unable to attend the hearing and that the Veteran had agreed to testify unrepresented in lieu of having to reschedule the hearing. 1. The discontinuance of SMC pursuant to 38 U.S.C. § 1114(s). A Veteran is entitled to SMC payable at the rate contained in 38 U.S.C. § 1114(s) if the Veteran has a service-connected disability rated as total and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of such service-connected disability or disabilities is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). When determining whether a Veteran has a single service-connected disability rated as total, the award of TDIU based on a single disability satisfies the requirement of "a service-connected disability rated as total" for the purposes of awarding SMC under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280, 29192 (2008). The disability or disabilities being used to meet the 60 percent requirement must be "separate and distinct" from the disability rated as totally disabling. 38 C.F.R. § 3.350(i)(1). A Veteran will be considered to be permanently housebound when the Veteran is substantially confined as a direct result of service-0connected disability to his or her dwelling and the immediate premises, and it is reasonably certain the disabilities or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350(i)(2). In this case, effective March 1, 2017 the Veteran's rating for brucellosis was reduced from 100 percent disabling to noncompensable. As a result, the Veteran's award of SMC pursuant to 38 U.S.C. § 1114(s) was discontinued, as the Veteran no longer had a single disability rated as total with additional disability ratable at 60 percent, nor was there evidence that the Veteran was permanently housebound. As noted above, as a threshold matter in order to be entitled to SMC under 38 U.S.C. § 1114(s) under any theory a Veteran must have a single disability rated as total. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). As of March 1, 2017, the Veteran was service connected for the following: (1) posttraumatic stress disorder (PTSD) at 70 percent; (2) chronic diffuse muscle aches and arthralgias as a result of brucellosis at 20 percent, (3) coronary artery disease (CAD) at 10 percent, (4) tinnitus at 10 percent, and (5) bilateral hearing loss, erectile dysfunction, and brucellosis at noncompensable levels. Thus, the record reflects that as of March 1, 2017, the Veteran was not assigned a schedular 100 percent rating for any of his service-connected disabilities. However, from March 1, 2017 forward the Veteran was also in receipt of a TDIU. A review of the January 2012 rating decision that awarded a TDIU reflects that the award was predicated entirely on the Veteran's service-connected PTSD. As the award of the TDIU was based on a single service-connected disability, the Veteran's service-connected PTSD is considered a single disability rated as total for the purposes of determining eligibility for SMC under 38 U.S.C. § 1114(s). Bradley, 22 Vet. App. at 29192. However, even when treating the Veteran's PTSD as a single disability rated as total in light of the TDIU award, from March 1, 2017 forward the Veteran does not meet the requirements for SMC 38 U.S.C. § 1114(s) under either of the available theories of entitlement. First, the Veteran does not have additional disability ratable at 60 percent or more from March 1, 2017 forward. Excluding the Veteran's PTSD, which as the disability that is rated as total cannot be considered when determining whether there is additional disability ratable at 60 percent, the other service-connected disabilities combine for only a 40 percent rating from March 1, 2017 forward. 38 C.F.R. § 4.25. As such, from March 1, 2017 forward the Veteran has a single disability rated as total, he does not have other disability or disabilities ratable at 60 percent. Therefore, SMC under 38 U.S.C. § 1114(s) is not warranted from March 1, 2017 forward under that theory. Second, there is no evidence that the Veteran was otherwise permanently housebound due to his disabilities. None of the Veteran's medical records indicate that he was in any way substantially confined to his dwelling during the period at issue. Indeed, VA treatment records associated with the file reflect that the Veteran was able to regularly leave his dwelling or the immediate premises to attend medical appointments, and the Veteran himself stated during his September 2021 hearing that he was not permanently housebound due to his disabilities. As the Veteran has clearly displayed the ability to regularly leave the house during the period from March 21, 2017, it cannot be stated that the Veteran is permanently housebound. 38 C.F.R. § 3.350(i)(2). As there is no evidence that the Veteran is permanently housebound from March 1, 2017 forward, entitlement to SMC under 38 U.S.C. § 1114(s) is not warranted under that theory of entitlement. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In sum, while the Veteran has a single disability rated as total in light of his TDIU award, the Veteran does not otherwise have separate and distinct disabilities ratable at 60 percent or more nor does the evidence show that he is substantially confined to his dwelling as a result of his disabilities. 38 C.F.R. § 3.350(i). During his hearing testimony the Veteran predominantly expressed disagreement with the rating assigned for his brucellosis, and further the medical care he was currently receiving. However, as noted above the propriety of the reduction for brucellosis was finally adjudicated in an August 2018 Board decision, and therefore that issue may not be addressed herein. 38 C.F.R. § 20.1303. As to the Veteran's complaints concerning his treatment, the Board is without the ability to address such concerns and instead such complaints should be directed to the Veteran's primary care provider to other appropriate medical center personnel. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 C.F.R. § 3.102. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.