Citation Nr: 21029397 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 21-00 061 DATE: May 13, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to December 24, 2018 has been withdrawn. Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) prior to December 24, 2018 is denied. FINDINGS OF FACT 1. At the April 2021 Board hearing before the undersigned, the Veteran explicitly and unambiguously withdrew the issue of entitlement to a rating in excess of 70 percent for PTSD prior to December 24, 2018, with a full understanding of the consequences of such action. 2. Prior to December 24, 2018, the Veteran did not have additional disabilities ratable at 60 percent, separate and distinct from the 100 percent service-connected PTSD, and the evidence does not show that he was permanently housebound due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to a rating in excess of 70 percent for PTSD prior to December 24, 2018 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for SMC at the housebound rate prior to December 24, 2018 have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1977 to November 1986 and from August 1988 to October 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a February 2020 rating decision granted an increased (100 percent) rating for the Veteran's PTSD, effective January 7, 2020, and SMC based on housebound criteria, effective January 7, 2020. A January 2021 rating decision granted earlier effective dates for both awards, effective December 24, 2018. The issues have been characterized accordingly. The Veteran testified before the undersigned Veterans Law Judge in an April 2021 virtual hearing. 1. Entitlement to a rating in excess of 70 percent for PTSD prior to December 24, 2018. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made on the record at a hearing by the appellant or by his or her authorized representative. Id. In the present case, the appellant, at the April 2021 Board hearing, advised that he wished to withdraw the appeal seeking a rating in excess of 70 percent for PTSD as he was seeking entitlement to a total disability rating based on individual unemployability (TDIU) due to his PTSD alone. See April 2021 hearing transcript. In a separate decision, the Board has awarded TDIU due to PTSD alone. Thus, he has withdrawn the appeal as to this issue and, hence, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal regarding entitlement to a rating in excess of 70 percent for PTSD prior to December 24, 2018, and it is dismissed. 2. Entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) prior to December 24, 2018. The Board notes 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, 38 (1993). 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 v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim" and remanding, pursuant to VA's duty to maximize benefits, for VA to determine whether the Veteran's posttraumatic stress disorder, rated 70 percent disabling, would entitle him to TDIU and, therefore, to SMC). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. at 294. Special monthly compensation is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional 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, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) 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 the statute. Under the law, subsection 1114(s) 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. The United States Court of Appeals for Veterans Claims (Court) has held that although a TDIU rating may satisfy the "rated as total" element of section 1114(s), TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The Court declared, however, if a veteran were awarded a TDIU rating based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU rating, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In a separate May 2021 decision, the Board awarded TDIU based on his service-connected PTSD alone, effective August 7, 2014. Therefore, based on this decision, effective from August 7, 2014, the Veteran has a single service-connected disability rated as total (i.e., PTSD). The pertinent question before the Board is whether the Veteran has additional service-connected disabilities that are independently rated as 60 percent. In analyzing the Veteran's claim, the Board notes that the Veteran has a 50 percent rating for his obstructive sleep apnea, effective from September 8, 2019. Inasmuch as the Veteran is seeking SMC at the housebound rate prior to December 24, 2018, his obstructive sleep apnea is of no assistance to his appeal, and will not be addressed further in determining whether the Veteran meets the criteria for SMC at the housebound rate prior to December 24, 2018. (Continued on the next page) Prior to December 24, 2018, the Veteran had established service connection for right and left knee tendonitis and patellofemoral pain syndrome, each rated 20 percent disabling, and tinnitus, rated 10 percent disabling, all effective from September 4, 2014. Combining the Veteran's service-connected disabilities (other than his service-connected PTSD) results in finding the Veteran does not have additional service-connected disabilities independently ratable at 60 percent. See 38 C.F.R. §§ 4.25, 4.26. The Board further finds that the record does not reflect the Veteran is permanently housebound by reason of service-connected disability or disabilities. The evidence of record for the period prior to December 24, 2018 reveals no examinations or treatment records reflecting such impairment. Indeed, a May 2015 VA examination found the Veteran could leave his home or immediate premises daily, but that he needs someone with him. It was also noted the Veteran was able to feed himself, prepare his own meals, did not need assistance in bathing and tending to other hygiene needs. Hence, after a review of the evidence of record, the Board finds the Veteran does not meet or nearly approximate the criteria for SMC under 38 U.S.C. § 1114(s) due to housebound status. Therefore, the claim must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.