Citation Nr: 21006935 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 12-21 036 DATE: February 8, 2021 ORDER Entitlement to special monthly compensation (SMC) based on housebound status is granted. FINDING OF FACT The Veteran is in receipt of a total disability rating based on individual unemployability due to his service-connected mood disorder and his remaining service-connected disabilities combined exceed 60 percent. CONCLUSION OF LAW The criteria for SMC at the housebound rate have been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to June 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board granted entitlement to a 70 percent rating for the Veteran’s service-connected mood disorder and granted entitlement to a TDIU effective May 20, 2005. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court issued a memorandum decision in June 2020, vacated the portion of the May 2018 Board decision, that denied entitlement to SMC under 38 U.S.C. § 1114 (s) and remanded the issue to the Board for readjudication. Entitlement to SMC at the housebound rate is granted. Special monthly compensation benefits by reason of being housebound are payable if a veteran has a single permanent disability rated 100 percent disabling and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, 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). The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i) (1). Subsection 1114 (s) for housebound benefits requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under VA law, subsection 1114 (s) housebound benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011). However, in Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court held that a total disability rating based on individual unemployability (TDIU) satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more, for purposes of entitlement to special monthly compensation for a housebound rating. In other words, 38 U.S.C. § 1114 (s) for housebound benefits does not limit “a service-connected disability rated as total” to only a schedular rating of 100 percent. Id. A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a total rating. Nonetheless, the TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits. In addition, the Bradley decision also stated that the decision to treat multiple disabilities as one under 38 C.F.R. § 4.16 (a) was specifically limited to TDIU ratings. That is, a TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C. § 1114 (s). The Court reiterated this interpretation with its holding in Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010) (“The Court today holds that a TDIU rating that is based on multiple disabilities cannot satisfy the section 1114(s) requirements of ‘a service-connected disability’ because that requirement must be met by a single disability.”). However, VA’s duty to maximize benefits requires VA to assess all of a claimant’s disabilities, regardless of the order in which they were service-connected, to determine whether any combination of disabilities establishes housebound benefits under 38 U.S.C. § 1114 (s). Id. In this case, the Veteran does not have a single service-connected disability rated as 100 percent disabling. Absent a single disability rated as 100 percent disabling, the Veteran normally would not meet the threshold legal criteria for entitlement to special monthly compensation under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350 (i). However, the Veteran has been granted an effective date of May 20, 2005, for the award of TDIU. In the May 2018 Board decision, the Board determined that the Veteran’s service-connected mood disorder precluded him from maintaining gainful employment. The Veteran reported that his mood disorder has caused him to have memory problems, irritability, and difficulties working with others. The Board further noted that the Veteran consistently reported sleeping approximately three hours a night and then sleeping during the day. Accordingly, although the psychiatric disability has been rated as 70 percent, for special monthly compensation purposes for housebound benefits, this disability satisfies the requirement of a “service-connected disability rated as total” based on the award of a TDIU rating. See Bradley and Buie, supra. Therefore, this threshold housebound benefits requirement is met. Moreover, the Veteran’s remaining service-connected disabilities combined to exceed 60 percent. As such, the Board finds that the Veteran has met the criteria for SMC at the housebound rate. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.