Citation Nr: 21076432 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-09 147 DATE: December 23, 2021 ORDER Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) is denied. FINDING OF FACT The Veteran is not factually housebound and does not have one disability rated at 100 percent (based on the rating schedule or through a total disability rating based on individual unemployability (TDIU)) and additional service-connected disabilities apart from his depression disability independently ratable at 60 percent or more disabling. CONCLUSION OF LAW The criteria for SMC at the housebound rate are not met. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1974 to January 1976. The Veteran attended a videoconference hearing before the undersigned Veterans Law Judge in January 2019. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans' Appeals (Board) in May 2019 and July 2020. The Board notes that the issue of entitlement to TDIU was granted by the Board in a November 2020 decision. This matter comes before the Board from an August 2021 order by the United States Court of Appeals for Veterans Claims (CAVC) granting a Joint Motion for Partial Remand (JMPR), which set aside a November 2020 denial by the Board, and remanded the issue for a new opinion. Additionally, the Board notes that the issue of entitlement to SMC based on a need for the regular aid and attendance of another person under 38 U.S.C. § 1114(l), was dismissed by CAVC in the August 2021 because the Veteran was no longer seeking CAVC's review of this claim. Accordingly, the issue of entitlement to SMC based on a need for the regular aid and attendance of another person under 38 U.S.C. § 1114(l) is no longer before the Board. Entitlement to SMC based on housebound status The Veteran has claimed that he is entitled to SMC on the basis of being housebound. Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is 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) he or she 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 requirement of "permanently housebound" will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. Id. Substantially confined does not mean that the Veteran is unable to leave his dwelling and the immediate premises at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006); Howell v. Nicholson, 19 Vet. App. 535 (2006). In Bradley v. Peake, the Court held that if the evidence supports a finding of TDIU based solely upon a single service-connected disability, then such a TDIU rating may serve as the factual predicate for an award of SMC pursuant to 38 U.S.C. § 1114(s). 22 Vet. App. 280, 293 (2008). In this case, the Veteran's service-connected disabilities include: pseudofolliculitis rated as 60 percent disabling effective August 30, 2010; depression, rated as 30 percent disabling effective May 3, 2010; and scars of the left chin, anterior trunk, and posterior trunk all rated as noncompensable. Additionally, the Veteran was granted entitlement to a TDIU effective August 30, 2010, in a November 2020 Rating Decision. The Veteran submitted a VA form 21-8940 in March 2012, and again in January 2013. The Veteran stated that his service-connected conditions prevented him from securing or maintaining a substantially gainful occupation. The Veteran stated that he has been unemployed since 1985. The Veteran indicated that he previously worked in construction. The Veteran noted that his only source of income was social security and his VA pension. Additionally, the Veteran noted that he had no education beyond high school. In a July 2011 examination for the Veteran's depression, the examiner noted that the medical records indicate that the Veteran's current psychiatric symptoms are mild in severity and would not significantly impair his ability to obtain or maintain gainful employment. The examiner concluded that the Veteran remained fully employable from a psychiatric perspective. Additionally, the examiner noted that the Veteran was competent to manage his funds in his best interest without restriction. In an October 2011 letter, the Veteran's primary physician, Dr. M.M., stated that the Veteran has multiple medical issues including coronary artery disease, hypertension, hyperlipidemia, diabetes, depression, chronic folliculitis, and neuropathic pain. Dr. M.M. noted that these issues make it very difficult for the Veteran to work. In a January 2012 assessment the Veteran was noted to be able to walk one block without the assistance of another person. The Veteran reported that he used a cane for ambulation. The examiner noted that the Veteran leaves the house for grocery shopping and medical appointments, and that he is able to drive to the store. The examiner concluded that daily skilled services were not indicated, and that the Veteran did not require the daily personal health care services of a skilled provider. In another January 2012 VA examination, the examiner noted that the Veteran is able to grip items, he has no issues with fine motor movements, and he is able to feed himself button all his clothing shave and attend to all needs of nature. The Veteran stated that he does need help from his caregiver to put his shoes and socks on. The examiner further noted that the Veteran does need help to get out of the bathtub; however, the examiner noted that if he showers, he is able to get in and out by himself. Additionally, the examiner noted that the Veteran is able to walk without the assistance of another person, but he reported that due to shortness of breath he does not. The examiner concluded that the Veteran is able to get dressed bathed and groomed on his own, and he is able to drive to the store to go shopping. Accordingly, the examiner opined that the Veteran does not meet criteria for aid and assistance/housebound and does not require the services of a personal healthcare provider for skilled needs for which he would otherwise need institutionalized. In a January 2012 assessment, Dr. M.M. noted that the Veteran is able to feed himself but was unable to prepare meals. Dr. M.M. further noted that the Veteran did not require nursing home care but did require assistance with medication management. Additionally, Dr. M.M. noted that the Veteran was able to manage his own finances. The Veteran reported pain from his folliculitis, which limited his range of motion. Furthermore, the Veteran reported needing help transferring in and out of bathtub. In a March 2012 statement, the Veteran stated that he believes that his service-connected skin disability prevents employment because employers think it is an abscess that is contagious. In a January 2013 statement, the Veteran's caregiver stated that she helps the Veteran with his laundry, grocery shopping, house cleaning, and cooking on a daily basis. In an assessment from December 2013, Dr. M.M. opined that the Veteran was not capable of performing his past work, or any other work, on a consistent full-time basis due to his service-connected disabilities. Dr. M.M. noted that the location of the Veteran's skin condition impacts his ability to sit, stand, walk, and concentrate. Dr. M.M. further noted that the Veteran's pain would be incapacitating and would affect his ability to maintain concentration during a workday. In an assessment from December 2013, Dr. I.T. noted that the Veteran had diagnoses of anxiety disorder unspecified and depressive disorder unspecified. The Veteran reported symptoms including mood changes, irritability, poor sleep, and pain from pseudofolliculitis. Dr. I.T. opined that pain related to the Veteran's skin condition is chronic and would affect his ability to work. Dr. I.T. further opined that the Veteran's psychiatric condition can significantly affect his ability to work and complete daily activities. In VA treatment records from September 2014, the Veteran reported that he was not currently employed. The Veteran further reported having a history of suicide attempts and noted that in the 1980s he overdosed on medication and also started to carry out a plan to jump off a bridge in the area, also in the 1980s, but stopped before completing the attempt. In a February 2015 assessment from Dr. D.M., the Veteran reported depression symptoms including depression, anxiety on a daily basis, poor sleep, suspiciousness, and frequent nervousness. The Veteran described himself as having significant problems with being in unfamiliar situations due to his difficulties with anxiety. The Veteran reported that he lost a large number of jobs because of his medical problems, and that most of those jobs were in the labor and construction field. Additionally, the Veteran noted that he lost most of those jobs because he had to take significant time off of work due to his medical problems. The Veteran also reported that he did a very poor job in any of the positions that he held due to his significant problems with depression and anxiety. Dr. D.M. opined that it was more likely than not that the Veteran's problems with anxiety and depression interfere with his functioning on a daily basis. Furthermore, Dr. D.M. agreed with the opinions of Dr. I.T. and Dr. M.M. that the Veteran's psychological symptoms would prevent him from performing his past work or any other type of work on a consistent basis. In a January 2017 medical opinion regarding pseudofolliculitis, the examiner opined that it was less likely than not that the Veteran's pseudofolliculitis interfered with his functioning on a daily basis. The examiner noted that, based on the medical literature, the Veteran's skin disability does not affect the ability to function. In VA treatment records from May 2017, the Veteran reported that he was unemployed and on disability for the past 15 years for his skin condition and depression. The Veteran further reported that he previously worked in construction. In a VA treatment record from January 2019, the Veteran stated that he is attending classes for peer support training and hopes to secure part time employment in the field. The Veteran had another examination for his pseudofolliculitis in July 2019. The examiner noted that the Veteran's skin disability did not impact his ability to work. In an August 2020 statement, the Veteran stated that his skin condition has stopped him from maintaining employment for any period of time. The Veteran further stated that he would "lose job after job" and when he would return to work with "the doctors excuse they would find out about my condition and felt that it may be contagious so they would let me go from the job". The Board finds that entitlement to SMC by reason of being housebound is not warranted. Initially, the Board notes that the Veteran does not have a service-connected disability rated at 100 percent. Although the Veteran is entitled to TDIU, it is not based solely on only one of the Veteran's service-connected disabilities. Rather, it is due to the combination of those disabilities. Specifically, the Board notes that the Veteran is not entitled to TDIU based solely on his service-connected pseudofolliculitis. The Board notes that the evidence of record indicates that the Veteran's pseudofolliculitis is painful and impacts his ability to sit, stand, walk, and concentrate. However, there is no evidence that indicates that the Veteran is precluded from securing or maintaining a substantially gainful occupation, based solely on his pseudofolliculitis. Although the Veteran's pseudofolliculitis can affect his ability to sit, stand, walk, and concentrate, the probative evidence of record indicates that the Veteran's pseudofolliculitis would not prevent him from working in a setting that does not require strenuous exertion. Similarly, the Board finds that the Veteran is not entitled to TDIU based solely on his service-connected depression. The Board acknowledges that the evidence of record indicates that the Veteran's depression results in symptoms such as depressed mood, anxiety, mood changes, irritability, and poor sleep. However, the Veteran's depression disability alone would not preclude the Veteran from securing or maintaining a substantially gainful occupation based on his education and past employment. Although the Veteran's depression can affect his concentrate and work well with others, the probative evidence of record indicates that the Veteran's depression would not prevent him from working in a setting with limited interactions with customers and co-workers. Ultimately, the Board finds that the Veteran is entitled to TDIU due to the combination of his service-connected pseudofolliculitis and depression disabilities. Furthermore, the Board finds that the evidence demonstrates that the Veteran is not factually housebound. As noted above, a Veteran is considered to be permanently housebound when he is substantially confined to his dwelling and the resultant confinement will continue or remain throughout his lifetime, which has not been demonstrated. The Board specifically notes a VA treatment record from January 2019, which notes that the Veteran stated that he was attending classes for peer support training and hopes to secure part time employment in the field. The January 2019 VA treatment record indicates that the Veteran was able to leave the home in order to attend classes in the hopes of securing part time employment to potentially earn an income. See Hartness, 20 Vet. App. at 222. Furthermore, the Board notes that the January 2012 examiner concluded that the Veteran is able to get dressed bathed and groomed on his own, and he is able to drive to the store to go shopping. Accordingly, the Board finds that the record does not show that the Veteran is housebound by reason of his service-connected disabilities. As such, the Veteran's claim must be denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.