Citation Nr: 21007669 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 190704-11008 DATE: February 10, 2021 ORDER Entitlement to special monthly compensation (SMC) based on being housebound, prior to August 18, 2015 is denied. FINDING OF FACT Prior to August 18, 2015, the Veteran did not have a 100 percent rating based on one single service connected disability, nor was his TDIU rating was not based on one single service-connected disability. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation (SMC) based on being housebound, prior to August 18, 2015 have not been met. 38 U.S.C. § 1114 (s). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2006 to January 2013. The Veteran selected the Direct Review lane when he opted into the Appeals Modernization Act (AMA) review system by selecting Higher Level Review in a form submitted on November 14, 2018, in response to a rating decision issued on September 20, 2018. The HLR request was followed by a January 2019 RAMP rating decision, which the Veteran properly appealed using Form 10182 in July 2019. Thus, the Veteran has properly opted into the modernized review system. See 38 C.F.R. § 3.2400(c)(2). Entitlement to special monthly compensation (SMC) based on being housebound, prior to August 18, 2015 The Veteran is in receipt of SMC from August 18, 2015. From that date, he has a total disability based solely on his service connected psychiatric disability, and his other service-connected ratings combine to 60 percent. The Veteran contends SMC should be awarded prior to August 18, 2015; as evidence, he cites an April 2018 evaluation indicating that his service-connected psychiatric disability was the sole basis for granting his TDIU rating. The Court has held that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35 (1993); see also Bradley v. Shinseki, 22 Vet. App. at 280. This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 280 (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). In Bradley, 22 Vet. App. 280, 293, the Court stated that a total disability rating based on individual unemployability (TDIU) can qualify for compensation at the 38 U.S.C. § 1114 (s) rate, but only if the TDIU is based on a single disability. Further, the Board notes that SMC based on § 1114 (s)(1) is an ancillary benefit, meaning it can be granted simply if entitlement is raised by the record – by, for example, an increased rating claim. Here, a timely initial increased rating claim was received in September 2013. Therefore, the Board has jurisdiction over the appeal for the period from January 29, 2013 (the day following the Veteran’s separation) to August 18, 2015. Pursuant to 38 U.S.C. § 1114(s), when a Veteran has a service-connected disability rated as total, and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to a SMC rating. 38 U.S.C. § 1114. This rating may also be available for a veteran who, is permanently housebound – that is, substantially confined to in their home or immediate premises due to a service-connected disability or disabilities, reasonably certain to remain throughout their lifetime. Id. The Veteran has not asserted that he required aid and attendance during the period on appeal, or that he was permanently housebound by reason of his service-connected disabilities or that he was permanently housebound for any reason. Rather, he argues that he is entitled to SMC for the period on appeal, based upon having one disability rated as 100 percent disabling and additional disability or disabilities independently ratable as at least 60 percent disabling. A review of the record does not indicate that the Veteran is permanently housebound. Accordingly, the Board need not consider entitlement to SMC on these bases. See Robinson v. Shinseki, 557 F.3d 1355 (Fed Cir. 2009). However, an SMC rating based on § 1114(s)(1) prior to August 18, 2015 is unwarranted because during this period, the Veteran did not have one service-connected disability that was rated as totally disabling, nor was his TDIU rating based on one disability. While the Veteran’s 2018 vocational examiner stated that the Veteran’s unemployability was due his psychiatric disability and his fibromyalgia individually, the evidence shows otherwise – that his service-connected disabilities combined to produce unemployability under § 4.16(a). In the January 2019 Rating Decision, the Veteran was granted SMC based on the housebound criteria being met; he was assigned an effective date of August 18, 2015. The RO found that his psychiatric disability was the sole cause of his disability, but only from August 18, 2015. This finding was based on the showing that after August 18, 2015, the Veteran was hospitalized several times for a psychiatric disability, which precluded him from working. See April 2018 Vocational Assessment. Prior to August 18, 2015, the evidence shows that the Veteran was unemployable, but not due to a single service-connected disability on a schedular basis. As mentioned above in Bradley, the Court held that for purposes of SMC, the statute does not limit a service-connected disability rated as total to only a schedular 100 percent rating; the regulation permits a TDIU rating based on a single disability to satisfy the statutory requirements of a total rating. In this case, however, the Board finds that the service-connected psychiatric disability is not the sole basis of the Veteran’s TDIU. During this period, the Veteran was also service connected for fibromyalgia, rated at 40 percent, a spine disorder, rated at 10 percent, vertigo rated at 10 percent, GERD rated at 10 percent, and several other disabilities rated as noncompensable. The Veteran therefore had multiple disabilities that contributed to his TDIU rating during the period on appeal. Specifically, his impaired walking from fibromyalgia, his unstable concentration stemming from his anxiety and depression symptoms, and the pain and functional impairment caused by his spine disorder, all contributed to his unemployability during this period. The Veteran’s fibromyalgia, in and of itself, is not the factual basis of his unemployability. The Veteran competently asserts that he cannot sit for more than five minutes; he contends that this, especially in the Veteran’s field of IT, is an essential part of work. Nonetheless, this limitation does not, in the view of VA, render the Veteran unable to secure or follow any substantially gainful occupation, based on a single disability. As the Veteran’s August 2014 VRE examiner noted in finding a serious employment handicap, the Veteran experienced chronic pain, fatigue, and limitations with prolonged standing, walking, sitting, typing, and repetitive fine motor usage of the hands. The Board finds that substantially gainful employment, whether in IT or another field, could be achieved without his sitting, typing, and fine motor actions being prolonged. These impairments can also be alleviated with the use of voice dictation software. Accordingly, the Veteran’s fibromyalgia alone, prior to August 18, 2015, could not serve as the basis for a TDIU. Neither could the Veteran’s psychiatric disability. The Veteran asserts that his psychiatric disability alone caused unemployability prior to the effective date of his SMC rating. The Veteran correctly points out that his psychiatric disability did not start causing unemployability on August 18, 2015, and had to have been doing so before. However, the evidence does not show unemployability based solely on his psychiatric disability. Such a showing is required by Section 1114(s). For example, an August 2014 VRE counseling record indicates limitations in dealing with those who do not understand his disabilities. Further, short term memory impairment, easy confusion, and suicidal thoughts also impacted the Veteran’s ability to be a provider during this period. The counselor does not indicate, nor does the evidence otherwise suggest, that the Veteran’s memory, cognitive, and mood-related symptoms, by themselves, preclude employment. Moreover, as stated in a January 2015 record, the Veteran reports that his psychiatric disability makes it “very difficult,” but not impossible, to do work. However, the lay evidence and psychiatric treatment records do not suggest that the Veteran’s psychiatric disability prevents substantially gainful employment that accommodates his disabilities. In any event, while medical opinions and examinations can be probative in a TDIU determination, the determination of unemployability is for the VA adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the Veteran’s psychiatric disability cannot be the basis of his TDIU rating prior to August 18, 2015. Indeed, the Veteran’s June 2015 TDIU application reflects that in October of 2014, his anxiety and depression intensified to the point where he could no longer work. He further states in his application that a severe cervical spine flare-up in March 2015 caused him to leave his job. Indeed, the Veteran explicitly states in this correspondence that he was unemployable due to a combination of his service-connected disabilities. The evidence of record does not show that prior to August 18, 2015, the Veteran’s total disability rating could be based solely on any of these service-connected disabilities. Therefore, from January 29, 2013 to August 18, 2015, the Veteran does not meet the criteria for SMC under 38 U.S.C. § 1114 (s)(1). The Board notes the argument that to deny this claim based on the possibility that another disability may be intertwined with the Veteran’s psychiatric disability, may lead to a result contrary to the spirit of the pro-claimant nature of the veterans’ law system. See Brown v. Gardner, 513 U.S. 115, 118 (1994) (in construing veterans’ law, “interpretive doubt is to be resolved in the veteran’s favor”). However, the statute is clear that to qualify for SMC through §1114 (s)(1), the service-connected disability must be rated as total (as opposed to the other prong of entitlement under this statute, which uses the word ratable). Accordingly, the Board finds that prior to August 18, 2015, the Veteran did not have a single service-connected disability rated as either 100 percent or as totally disabling based on individual unemployability. Unfortunately, therefore, this appeal must be denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia