Citation Nr: 21009409 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-12 397 DATE: February 22, 2021 ORDER From January 28, 2010, special monthly compensation (SMC), based on 38 U.S.C. § 1114(s), is granted. FINDINGS OF FACT 1. The Veteran is service-connected for schizoaffective disorder, bipolar type and has a 100 percent schedular evaluation from January 28, 2010. 2. From January 28, 2010, the Veteran has other service-connected disabilities that are separate and distinct from his service-connected psychiatric disability that combined to preclude substantially gainful employment; thus, they also combine to a disability rating of at least 60 percent. CONCLUSIONS OF LAW 1. From January 28, 2010, the criteria for a total disability rating based on individual unemployability on an extraschedular bases, due to service-connected disabilities other than his service-connected schizoaffective disorder, bipolar type. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.340, 4.16(b), 4.19. 2. From January 28, 2010, the criteria for a SMC(s), statutory housebound, are met. 38 U.S.C. §§ 1114(s), 1155, 5107, 38 C.F.R. §§ 3.103(a), 3.350(i), 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to June 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was last before the Board in April 2020, at which time it was remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The Director provided such a decision in August 2020. As such, the requested directives have been substantially complied with and the matter has been properly returned to the Board for appellate consideration. The Board has recharacterized the issue, as stated on the title page, to better reflect what is the subject of the remaining issue on appeal after the several prior Board decisions and remands noted above. The Entitlement to SMC(s), prior to December 27, 2017. The Secretary is required to maximize benefits. See AB v. Brown 6 Vet. App. 35, 38 (1993) (presuming that a claimant is seeking the maximum benefits allowed by law and regulation); 38 C.F.R. § 3.103(a)(2020) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law"). SMC is available when, "as the result of service-connected disability," a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C. § 1114(k)-(s). The rate of SMC "varies according to the nature of the veteran's service-connected disabilities." Moreira v. Principi, 3 Vet. App. 522, 524 (1992). The issue before the Board is whether the Veteran meets the statutory requirements for payment of SMC at the housebound rate prior to December 27, 2017. Such requirements are met when a Veteran has a single service-connected disability rated at 100 percent, and other service-connected disability (or disabilities) separate and distinct from the disability rated as 100 percent, and are rated at a combined disability rating of 60 percent or higher. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating). Additionally, a total disability rating based on individual unemployability (TDIU) may meet the criterion, but only if assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). While the separate disabilities rated as 60 percent disabling must involve separate and distinct anatomical segments or body systems, the fact that the total disability and the independent 60 percent disabilities result from a common etiological agent will not preclude entitlement. Additionally, there is no language in either the statute or the regulation that relates to timing or suggests that the relevant disabilities must be awarded in a particular order. Buie, 24 Vet. App. at 250. Whenever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA's duty to maximize benefits requires VA to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s). If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities. Id. at 250-51. *** Here, effective January 28, 2010, and prior to December 27, 2017, the Veteran’s service-connected disabilities include schizoaffective disorder bipolar type, evaluated at 100 percent disabling from January 28 2010. Additionally, the Veteran is service-connected for lumbosacral degenerative disc disease, evaluated at 10 percent disabling from June 23, 1989 and as 20 percent disabling from September 15, 2011; residuals injury left knee, evaluated at 10 percent disabling from June 23, 1989 and as 20 percent disabling from January 28, 2010; hemorrhoids, evaluated at 0 percent disabling from June 23, 2010 and as 10 percent disabling from June 1, 2010. Given the 100 percent schedular rating for schizoaffective disorder as of January 28, 2010, the Veteran has a single service-connected disability rated at 100 percent and this criterion is met. Regarding the second SMC(s) criterion, from September 15, 2011, the Veteran has other service-connected disabilities that are separate and distinct from his service-connected psychiatric disability that combined to a disability rating of 40 percent. Per 38 C.F.R. § 4.25, the Veteran has 20 percent (lumbar) plus 20 percent (L knee) plus 10 percent (hemorrhoids) this combined to 42 percent and rounds to 40 percent. From January 28, 2010 to September 15, 2011, the Veteran service-connected disabilities (other than psychiatric) combined to 27 percent and this rounds to 30 percent. As such, the statutory requirements for payment of SMC at the housebound rate are not met, because the other service-connected disabilities do not have a combined disability rating of at least 60 percent prior to December 27, 2017. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) The Board cannot consider the psychiatric disability in evaluating entitlement to a TDIU during the period from January 28, 2010 to December 27, 2017, as an award based on such would constitute a “duplicate counting of disabilities.” See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Veteran did not have a combined rating of at least 70 percent, and the disabilities were neither resulting from a common etiology or a single accident, nor affecting a single body system. 38 C.F.R. § 4.25. Therefore, the schedular requirements for TDIU have not been met as of January 28, 2010, and prior to December 27, 2017. However, the Board can consider whether the Veteran’s service-connected disabilities, other than psychiatric, produce combined effects to render the Veteran unable to secure or follow substantially gainful employment on an extraschedular basis per 38 C.F.R. § 4.16(b). In August 2010, the Veteran filed a VA 21-9840 application for increased compensation based on unemployability. 08/06/2010, VA 21-8940. He indicated that his service-connected left knee, low back, and psychiatric disabilities prevented him from securing or following substantially gainful occupation. In April 2015, the Board remanded the Veteran’s claim for TDIU as it was intertwined with his claims for increased ratings. 04/13/2015, BVA Decision; see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that a claim for TDIU may be part and parcel of a veteran’s claim for an increased rating of a service-connected disability). Accordingly, the Board finds that TDIU was reasonably raised by the record prior to December 27, 2017. In April 2018, the Board remanded and referred the TDIU claim to VA’s Director of Compensation Service for extraschedular consideration. 04/02/2018, Remand BVA or CAVC. Subsequently, an April 2020 Board decision acknowledged that the Veteran is qualified for the assignment of special monthly compensation (SMC) under 38 U.S.C. pursuant to § 1114(s) from December 2017 (award of SMC(s) is effective December 27, 2017) and remanded the issue of whether the Veteran’s non-psychiatric disabilities warranted the assignment of TDIU during the portion of the rating period on appeal prior to December 2017. Specifically, the April 2020 Board decision remarked that the RO had not yet referred the Veteran’s claim for extraschedular consideration and remanded the claim for substantial compliance with the Board’s remand directives. 04/09/2020, BVA Decision. In August 2020, the Director of Compensation Service determined that a TDIU on an extraschedular basis was not warranted. 08/06/2020, VA Memo. In Wages v. Shinseki, the United States Court of Appeals for Veteran’s Claims (the “Court”) held that a decision from the Director of Compensation Service “is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence.... It is simply a decision that is adopted by the [agency of original jurisdiction] and reviewed de novo by the Board.” 27 Vet. App. 233, 239 (2015). The Court concluded that the Board erred when it relied on the Director’s decision as evidence to deny an extraschedular total disability rating based on individual unemployability. Id. The Court added that the VA Compensation Service Director’s initial determination as to an extraschedular evaluation is not evidence. Id. After affording him the benefit of the doubt, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected lumbosacral spine, left knee, and hemorrhoids disabilities alone throughout the period on appeal. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1 , 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether the Veteran is capable of obtaining and maintaining gainful employment due to his service-connected disabilities, the Board must consider the Veteran’s work history, education, and any special training. See Rice, 22 Vet. App. at 452 (stating that entitlement to TDIU is based on an individual’s particular circumstances). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019).   The Veteran contends that his left knee and lower back disabilities prevent him from securing or following a substantial gainful employment. 07/08/2010, VA 21-4138. The Veteran completed two years of college education. The Veteran last worked in February 2008 as a truck driver. 06/03/2010, VA 21-8940 Application. The Veteran also worked briefly as a truck driver from April 2, 2008 to April 3, 2008 and has worked almost exclusively in trucking and transportation since discharge from active service. See 06/12/2015, Medical Treatment Records – Furnished by SSA, pages 39-40. A March 2010 examiner remarked that the Veteran’s left knee condition causes difficulty in climbing stairs and lifting heavy objects. 03/08/2010, VA Examination. A July 2010 letter from a VA staff physician reported that the Veteran is unable to work more than 20 hours per week. 08/27/2010, Correspondence. A September 2010 examiner indicated that the Veteran’s low back disability causes difficulty in sitting and standing for long periods of time. 09/16/2010, VA Examination. A December 2010 examiner opined that the Veteran’s hemorrhoids impacts his ability to work as a truck driver, as flareups result in the Veteran being unable to stand, sit, or walk for prolonged periods of time. Moreover, a September 2011 evaluation indicated that the Veteran’s lower back was in constant pain, with multiple flareups of severe pain per week necessitating bedrest. Likewise, the Veteran’s left knee was in constant pain and prone to giving out, limiting activities such as walking, standing, and exercise. 01/13/2012, Third Party Correspondence. And, an April 2012 vocational assessment concluded that the Veteran has not been able to engage in any substantial gainful occupation since February 2008 solely due to his service-connected low back and left knee disabilities. Specifically, the Veteran had been terminated from his positions of work because of absences due to exacerbations of severe back pain and swelling of the left knee. 07/16/2013, Medical Treatment Record – Non-Government Facility. Upon review of all lay and medical evidence, and after affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s level of disability, given his education, training, and experience, would renders it impossible for the average person to obtain or retain substantially gainful employment of some type based solely on his service-connected disabilities. Van Hoose, 4 Vet. App. at 363. The evidence demonstrates that the Veteran’s service-connected low back and left knee disabilities render him unable to work in physical labor. Additionally, his service-connected low back and hemorrhoids disabilities render him unable to work in sedentary environments where he has sit or stand for prolonged periods of time. Moreover, the Veteran’s education and his history of working almost entirely as a truck driver indicates that he would not be able to find substantially gainful employment in another profession or a sedentary employment field. Based on the combined effects of the Veteran’s service-connected disabilities, as well as the Veteran’s work history and education level, entitlement to a TDIU is warranted. Given these reasons and after affording the Veteran the benefit of the doubt, TDIU on an extraschedular basis is warranted prior to December 27, 2017, and as of January 28, 2010, the date the TDIU claim was raised by the record as part and parcel of his increased rating claims. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990). As such, SMC(s) is also warranted from January 28, 2010 as the Veteran has a service-connected disability rated as total (psychiatric) and separate and distinct disabilities that combined to at least 60 percent (left knee, low back, hemorrhoids). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.