Citation Nr: A21020244 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 190704-11008 DATE: December 20, 2021 ORDER Entitlement to an effective date of March 28, 2015 for the award of special monthly compensation (SMC) based on housebound status is granted. FINDING OF FACT The Veteran's claim for SMC based on housebound status was received on March 28, 2016; and it is at least as likely as not that from March 28, 2015 onward the service-connected psychiatric disorder individually rendered the Veteran unable to secure or maintain a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to SMC based on housebound status effective March 28, 2015 have been met. 38 U.S.C. §§ 1114 (s), 5110(a); 8 C.F.R. §§ 3.350 (i), 3.400(o)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Air Force from September 2006 to January 2013. A rating decision was issued under the legacy system in September 2018. In November 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in January 2019, which is the decision on appeal. In July 2019, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2018 RAMP opt-in. 38 C.F.R. § 20.301. 1. Entitlement to SMC based on housebound status prior to August 18, 2015. The Veteran seeks entitlement to SMC based on housebound status prior to August 18, 2015. The Veteran asserts that either fibromyalgia or his service-connected psychiatric disorder could have independently rendered him unable to secure or follow a substantially gainful occupation prior to August 18, 2015. See January 2016 notice of disagreement. SMC is payable for housebound status where the claimant has a single service-connected disorder rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Alternatively, such compensation may be granted when the claimant is permanently housebound by reason of service-connected disability or disabilities. Id. A total disability rating based on individual unemployability (TDIU) based on a single service-connected disability alone may service as the basis for a single disability ratable at 100 percent. On the other hand, a TDIU based on several service-connected disabilities in concert with each other does not result in SMC. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). As SMC is a form of disability compensation, the effective date is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise the effective date is the date of claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). Procedurally, the Veteran first asserted entitlement to SMC in a January 2016 notice of disagreement to a December 2015 rating decision. However, the Veteran's attorney subsequently withdrew the notice of disagreement to the December 2015 decision before a statement of the case was issued, ending that appeal. Therefore, there was no underlying pending claim from the December 2015 rating decision to which an SMC claim could be inferred on appeal. On March 28, 2016, VA received the Veteran's Fully Developed Claim for SMC. In May 2018 correspondence, the Veteran's attorney noted the Veteran's claim for SMC had been pending since March 28, 2016. Thus, the proper date of claim for SMC benefits is March 28, 2016 and the earliest possible effective date available for the award of SMC benefits is March 28, 2015. The question the Board must resolve is whether entitlement to an SMC arose prior to August 18, 2015. Specifically, the issue is whether TDIU could have been granted based on only one service-connected disability prior to August 18, 2015. Here, it is at least as likely as not that the Veteran was disabled solely due to the effects of the service-connected bipolar disorder from March 28, 2015 onward. Generally, the Veteran has a college education and a background in electronic technology and sales. February 2015 medical records document the Veteran had an associate degree in electronic technology and a bachelor degree in religious studies. Since separation from service, the Veteran held short-term positions as a salesperson. A July 2012 VA mental health examination report documents the Veteran had panic attacks about 4 to 5 times per week, and his recent memory was mildly impaired. The Veteran also described significant fatigue. The examiner noted the Veteran had lost 10 weeks of work due to medical appointments in the prior 12 months. An August 2014 VA vocational counseling report documents the Veteran did have a serious employment handicap and had been unable to achieve employability. The provider documented that due to adjustment disorder, the Veteran had limitations dealing with other people who did not understand his service-connected disabilities. January 2015 federal health records document that the Veteran's psychiatric disorder made it very difficult to work. March 2015 federal health records note the Veteran complained of increased anxiety and stress and feared that he was unable to handle the ability to manage the demands of new job as a salesman at a Verizon store. He reported that his job involved a lot of interaction with the public, and he lacked confidence and social skills. He also characterized his difficulties with anxiety as episodes of dizziness, headaches, racing thoughts, difficulty concentrating, memory problems, and acting impulsively. April 2015 employment documents show the Veteran requested accommodations for his disability in the context of the sales representative position at Verizon. On that form, he wrote that he had moderate depression and severe anxiety, difficulty bending over due to spine issues, and numbness and shooting pains in his arms and legs that interrupted work. Overall, the Veteran requested a leave of absence. Additional documents show the Veteran's employer denied his request and terminated his employment. A May 2015 privately completed disability benefits questionnaire (DBQ) completed by a psychiatrist documented the Veteran had generalized anxiety disorder and mood disorder with symptoms of depression and anxiety that caused occupational and social impairment with deficiencies in most areas, including work. That provider noted the Veteran had occupational impairment due to anxiety and depression and had difficulty retaining full time work. On his June 2015 application for a TDIU, the Veteran wrote that he became too disabled to work on October 15, 2014. He wrote that he tried self-employment from March 2014 to October 2014, but in October 2014 his anxiety and depression worsened, and he could barely work. He eventually quit that job in December 2014. He reported that he only made $2008 during the entire time he worked in 2014. He again tried working in February 2015, but his anxiety and depression worsened and he could no longer work in in March 2015. An August 2015 VA medical examiner documented the Veteran's report that his anxiety and depression caused total impairment some days, and he tended to withdraw and isolate when he "cannot manage." That examiner documented symptoms of depressed mood, anxiety, near continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, suicidal ideation, and intermittent ability to perform activities of daily living. Also of record is an April 2018 assessment from SF, certified rehabilitation counselor. SF interviewed the Veteran and documented his report that bipolar disorder worsened in the winter of December 2014. Regarding the bachelor degree he attained, SF noted the program was predominantly online. The Veteran did have to report to campus once per week but he had permission from his instructor to lie down and change positions during the 2 hour class. He was able to complete his homework with difficulty, which was mainly writing papers. The Veteran also attempted self-employment in sales and was only able to work approximately 15 hours a week. SF opined that the functional impacts of the Veteran's fibromyalgia and bipolar disorders, individually, were incongruent with competitive employment. The Veteran was unable to meet the basic requirements of unskilled, entry level work due to the need for unscheduled breaks, difficulty sustaining focus and attention, needing redirection to remain on task, and not being able to attend work on a regular schedule. As an example, SF noted that during the Veteran's period of self-employment he was only able to work 15 hours per week. Further, the Veteran had mood fluctuations caused him to retreat and withdraw. It is at least as likely as not that from March 28, 2015 onward the Veteran's service-connected bipolar disorder, diagnosed as adjustment disorder at that time, rendered the Veteran unable to secure or follow a substantially gainful occupation. The evidence shows that the Veteran was unable to complete even part time, telework sales due to worsening anxiety and depression around December 2014. The Veteran was employed for a few months in 2015, but at the start of that employment he expressed concern that he was psychologically unable to handle the stress of the job. Though he also cited a flare of his cervical spine disorder as a reason he stopped working in 2015, he also reported that his depression and anxiety prohibited him from being able to interact effectively with customers at work. The August 2015 VA medical examination and March 2015 federal health records document the Veteran had significant difficulty interacting with the public as part of his job, and that he had severe symptoms that made him unable to function some days. The findings of the August 2015 examiner are consistent with the Veteran's description of symptoms from at least March 2015 onward and consistent with the other treatment records. Based on those findings, it is unlikely the Veteran was able to follow a gainful occupation from at least March 2015 onward. SF reviewed the relevant evidence from the time the Veteran stopped working at his most recent job in March 2015, and adequately opined that the severity of the Veteran's psychiatric disorder individually would render him unable to maintain gainful employment in an entry level position. For the period from March 28, 2015 onward, the Veteran had additional service-connected disabilities that combined to at least 60 percent under 38 C.F.R. § 4.25. Myofascial pain syndrome with fibromyalgia was rated at 40 percent, and when combined with the 10 percent evaluation for cervical and lumbar spine yields 46. When 46 is then combined with the 10 percent evaluation for benign paroxysmal vertigo, that yields 51. When 51 is combined with the 10 percent evaluation for gastroesophageal reflux disorder, that yields 56. 56 rounded to the nearest number divisible by 10 yields 60. Thus, the combined evaluation for the remaining service-connected disabilities is at least 60 percent. In sum, it is at least as likely as not that the Veteran's service-connected bipolar disorder rendered him unable to secure or follow a substantially gainful occupation from March 28, 2015 and he had additional service-connected disabilities that combined to a 60 percent rating. Thus, the criteria for entitlement to SMC based on housebound status from March 28, 2015 are met and the claim is granted to that extent. An effective date of March 28, 2015 is granted for SMC based on housebound status. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.