Citation Nr: 21023908 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-17 441 DATE: April 21, 2021 ORDER Entitlement to special monthly compensation (SMC) based on statutory housebound status is denied. FINDING OF FACT The Veteran does not have a single service-connected disability rated totally disabling, to include consideration of total disability based on individual unemployability (TDIU). CONCLUSION OF LAW The criteria for entitlement to SMC based on statutory housebound status are not met. 38 U.S.C. § 1114, 5107; 38 C.F.R. § 3.102, 3.350, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1988 to February 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2009 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2018 decision, the Board denied service connection for a bilateral shoulder disability, as well as increased evaluations for an acquired psychiatric disorder, left arm and leg neurological conditions, and vertigo as a residual of stroke. The Board also found it did not have to further consider entitlement to a total disability rating, as the Veteran was in receipt of a combined total evaluation. The Veteran appealed a January 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019 the Court granted a Joint Motion for Remand (JMR) vacating the Board’s denial, finding the failure to consider a total rating on any basis was in error. The Court also pointed out that there were potential grounds for award of SMC should a total rating be warranted on the basis of a single disability. In October 2019 the Board in turn again decided the majority of the service increased rating claims; TDIU was granted for the period prior to assignment of a combined 100 percent rating. Service connection for the shoulders, rating of the left upper extremity, and entitlement to SMC based on the need for the regular aid and attendance of another or at the housebound rate were remanded. A subsequent February 2021 Board decision resolved all claims save that of entitlement to SMC on a statutory housebound basis, which was remanded as intertwined with implementation of the Board grants. Such has been accomplished and the single issue of entitlement to SMC based on statutory housebound status is now returned to the Board. Generally, claims for SMC are governed by the provisions set forth at 38 U.S.C. § 1114 (k) through (s), and 38 C.F.R. §§ 3.350 and 3.352. SMC grants an additional level of compensation to Veterans above the basic levels of compensation (0-100 percent) for various types of losses or levels of impairment solely due to service-connected disabilities. SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition has a 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. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The JMR stated that the Board should determine if any single service-connected disability could be rated totally disabling, to include independently supporting an award of TDIU, for SMC purposes. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (finding that VA should infer from a claim for increased ratings a request for SMC if applicable) The Court explained that the proper question is whether a TDIU may be predicated on a single service-connected disability, not whether it was actually awarded based on a single service-connected disability. See Buie v. Shinseki, 24 Vet. App. 242 (2011). Importantly, a “single service-connected disability” does not include consideration of the provisions of 38 C.F.R. § 4.16(a), which permit multiple conditions to be treated as a single disability for purposes of meeting schedular eligibility thresholds for TDIU. Such consideration is limited to TDIU entitlement alone, and does not apply for purposes of establishing SMC eligibility. Bradley v. Peake, 22 Vet. App. 280 (2008) Here, the Veteran was granted a TDIU based on his service-connected disabilities combined impact. A specific disability was not identified as the sole basis for entitlement to TDIU. Rather, TDIU was granted based on the sum of the impacts and limitations of the Veteran’s service-connected disabilities. The Board must therefore consider whether any single disability would warrant a finding of TDIU. The Board recognizes that the Veteran’s service-connected disabilities cause some level of occupational impairment, as evidenced by the disability evaluations he has been assigned. The percentage ratings set forth in the Rating Schedule represent as far as can practically be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Thus, the disability rating itself recognizes that industrial capabilities are impaired. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). However, here, a single condition must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is service connected for obstructive sleep apnea (OSA) with asthma rated as 50 percent disabling from March 2009. He was diagnosed with OSA with asthma while in service and provided with a CPAP machine. A March 2009 examination indicated there were no significant effect on occupation or daily activities. The Veteran is service connected for an adjustment disorder with depressed and anxious features rated as 30 percent disabling from March 1, 2009 and 50 percent disabling from April 15, 2016. In a March 2009 VA mental disorder examination, the examiner stated that the Veteran’s mental disorder decreases his work efficiency and ability to perform occupational tasks only during periods of significant stress. The March 2009 examiner also noted that although he was not currently working, he was able to take care of his family and his home despite symptoms of insomnia and sadness. In a June 2009 notice of disagreement (NOD), the Veteran indicated that he, “becomes emotionally depressed when exposed to any involvement of injured soldiers and civilians whether in person, television, or reading the newspaper.” Despite his symptoms, the Veteran indicated an intent and desire to seek employment. In a June 2012 letter to the Board, the Veteran stated that he had become more socially withdrawn and could not work as a respiratory therapist because of his adjustment disorder. He still indicated a desire to seek employment. In April 2016, he was given another VA mental disorder examination. The Veteran described his current emotional health as “fair to good.” His symptomatology included sad feelings, problems with sleep, loss of motivation, negative thoughts, frequent sense of discouragement, feeling restless, irritability, agitation, attention/concentration difficulties, increased hypervigilance, easily overwhelmed, decreased sexual interest, and fluctuating self-esteem. He denied having any panic attacks. He denied he has had thoughts of suicide and he has never attempted. He denied any serious consideration of suicide at the time of this examination. He denied experiencing any hallucinations or delusions. Occupational and social impairment considered to be an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He was not in treatment but noted that over the past five years he has been to couples counseling. Although the Veteran’s adjustment disorder causes occasional occupational and social impairment, he demonstrated a willingness to seek employment and felt that he would be able to work in a low stress office position. The Veteran is service connected for migraine headaches rated as 30 percent disabling from March 1, 2009. A VA headaches examination was given in April 2016. During the exam, he said his headaches felt like he was being hit down the center of his head with an axe. Characteristic prostrating attacks occur more frequently than once a month. The examiner opined that the functional impact of the Veterans migraines precluded his ability to perform tasks that require concentration or sustained focus. The headaches may also preclude his ability to follow instructions and limits communication. Additionally, the medication used to treat his condition blunts his ability to concentrate and causes drowsiness. It was also noted, during the exam, that the Veteran has more than one prostrating attack each month. There is no evidence in the file that migraines specifically prevent the Veteran from obtaining and maintaining employment. The Veteran is service connected for left upper extremity dystaxia and left shoulder radiculopathy rated as 30 percent disabling from March 1, 2009. He stated that he was unable to coordinate movement of his left upper and lower extremities following his 2008 stroke. His left shakes uncontrollably which affects driving and other aspects of daily living. A 2016 VA examiner opined that his left upper extremity dystaxia interferes with gross and fine motor manipulation tasks. The Veteran would also have limits reaching with his left arm. During a February 2018 VA examination, the Veteran reported some weakness in his hand and wrist. The examiner described the left upper extremity dystaxia deficits as mild, “just as they were,” in the 2009 VA examination. He opined that there is not evidence of a significant disability. The Veteran is service connected for left lower extremity dystaxia rated as 10 percent disabling from March 1, 2009 and 20 percent disabling from April 15, 2016. He stated that he was unable to coordinate movement of his left upper and lower extremities following his 2008 stroke. Symptoms of his dystaxia still remain even after physical therapy. During a 2016 VA examination, he claimed that his dystaxia caused him to stumble when walking and required the use of a cane for stability. A faster pace when walking provides better balance for the Veteran. The examiner opined that his hemiplegic gait was mild on the left side. The Veteran is service connected for right lower extremity peripheral neuropathy of the sciatic nerve rated as 20 percent disabling from March 1, 2009. He stated that lower back pain would worsen during road marches and constant driving. A 2016 VA examiner opined that the Veteran had a reduced capacity for lifting heavy objects or repeated lifting of moderate weights. The Veteran is service connected for right shoulder radiculopathy rated as 20 percent disabling from March 1, 2009. A 2016 VA examiner opined that the Veteran had mild weakness in his right upper extremity. He further opined that the Veteran had a reduced capacity for lifting heavy objects or repeated lifting of moderate weights. The Veteran’s dystaxia, neuropathy and radiculopathy disabilities do not, on their own warrant extraschedular consideration for a TDIU. Looking at each disability singularly, results in an assumption that the other extremities would be able to function normally. The limitation of one extremity would not render it impossible for the Veteran to obtain and maintain employment. The Veteran is service connected for right knee patellofemoral syndrome rated as 10 percent disabling from March 1, 2009. Service treatment records (STR) from 2007 indicate the Veteran feels pain during knee flexion. A July 2007 STR noted impairment of mobility and strength resulting in the Veteran not being able to sprint and having pain during prolonged periods of sitting. A March 2009 VA examination noted pain over the anterior and medial aspect of the knee. The examiner opined that activity limitation due to the condition of the knee was limitation on the Veteran’s exercise program. The examiner further opined that the Veteran had no limitation for walking and was able to stand 3 to 8 hours, with only short rest periods. The limitations resulting from the Veteran’s right knee condition may limit exercise but do not rise to a level that would prevent him from gaining and maintaining employment. Thus, TDIU could not be predicated on this disability alone. The Veteran is service connected for left knee patellofemoral syndrome rated as 10 percent disabling from March 1, 2009. Service treatment records (STR) from 2007 indicate the Veteran feels pain during knee flexion. A July 2007 STR noted impairment of mobility and strength resulting in the Veteran not being able to sprint and having pain during prolonged periods of sitting. A March 2009 VA examination noted pain over the anterior and medial aspect of the knee. The examiner opined that activity limitation due to the condition of the knee was limitation on the Veteran’s exercise program. The examiner further opined that the Veteran had no limitation for walking and was able to stand 3 to 8 hours, with only short rest periods. The limitations resulting from the Veteran’s right knee condition may limit exercise but do not rise to a level that would prevent him from gaining and maintaining employment. The Veteran is service connected for a cervical spine strain rated as 10 percent disabling from March 1, 2009. The March 2009 examiner indicated pain from the strain radiates into the bilateral posterior shoulders. The pain was described as muscular aching. The examiner indicated that the veteran’s spine strain limited exercise, sports, recreation, and shopping. No effect on occupation was noted. The Veteran is service connected for vertigo rated as 10 percent disabling from March 1, 2009 to April 8, 2016 and service connected for a cerebrovascular accident with vertigo symptoms rated as 0 percent disabling from March 1, 2009 and 10 percent from April 8, 2016. A September 2017 rating decision found clear and unmistakable error in the evaluation for vertigo as a separate evaluation. Service connection was ended for Vertigo as a separate disability. He indicated the onset of vertigo symptoms was in February 2008. The duration of the symptoms was a minute or less. The March 2009 examiner stated that Vertigo is more likely than not a symptom of his stroke. An April 2016 VA examination indicated that the Veteran’s Vertigo episodes effect his balance and limit working at heights, perform climbing, work around heavy equipment or machinery, and would limit operation of motor vehicles. The Veteran’s education and prior work experience did not require him to work from heights or perform climbing. This disability alone would not render him unable to gain employment. The Veteran is service connected for bilateral tinnitus rated as 10 percent disabling from March 1, 2009. He stated that the periods of tinnitus are brief in nature. No functional or occupation limitations were noted during the March 2009 VA examination. Another VA hearing and tinnitus examination was given April 2016. No functional limitations impacting his ability to work were found. The Veteran is service connected for gastroesophageal reflux disease rated as 10 percent disabling from March 1, 2009. He noted onset of reflux symptoms in 2005 while in Iraq. The March 2009 examiner did not find occupational or functional limitations resulting from reflux. The Veteran is service connected for allergic rhinitis rated as 0 percent disabling from March 1, 2009. He developed symptoms during “cedar season” and have persisted since. The March 2009 examiner did not find any functional or occupational limitations due to allergic rhinitis. The Veteran is service connected for essential hypertension rated as 0 percent disabling from March 1, 2009. He was diagnosed with hypertension while in service. The Veteran was noted as having blood pressure readings in the 130 to 140 range following his stroke. The March 2009 examiner opined that there were no effects on the Veteran’s usual daily activities. The Veteran’s hypertension, alone, does not warrant SMC. In summary, the Veteran’s service-connected disabilities cause various degrees of occupational and social limitation. When looked at as a combined effect, the disabilities warrant a TDIU. However, when looked at individually, the effects of each disability do not render the Veteran unable to follow a substantially gainful occupation. The Veteran has been unemployed since retiring from service. Although he expressed an interest and desire to seek employment, no evidence of an inability to obtain a job based on a specific disability exists in the claims file. Thus, SMC cannot be predicated on a single, totally disabling service-connected disability. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nolan, Shane D. 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.