Citation Nr: 21041956
Decision Date: 07/10/21	Archive Date: 07/10/21

DOCKET NO. 18-38 738A
DATE: July 10, 2021

ORDER

Entitlement to special monthly compensation (SMC) by reason of being housebound is denied.

FINDING OF FACT

The Veteran does not have a single disability ratable as 100 percent disabling; nor is he limited to the immediate premises of his home due to service-connected disabilities.

CONCLUSION OF LAW

The criteria for an award or extension of SMC based on being housebound are not met.  38 U.S.C. § 1114; 38 C.F.R. § 3.350.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran was a member of the Army National Guard who had a period of initial active duty training from August 1981 to March 1982.  He then served on active duty with the U.S. Army from October 1990 to August 1991 and from July 6, 2002, to July 20, 2002, including service in Saudi Arabia.  He timely appealed this matter from a February 2018 rating decision.

In February 2019, the Board of Veterans' Appeals (Board) remanded the matter for further development.  In October 2020, the Board denied SMC based on the need for aid and attendance.  Although the Board listed SMC based on housebound status as denied as well, that matter was not fully adjudicated at the time; the findings and conclusions related only to aid and attendance.

Here, the essential facts are not in dispute; the appeal rests on interpretation and application of relevant law.  Any deficiency of VA's duties to notify and assist is rendered harmless for issues limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002).

SMC at the housebound rate under subsection (s) is awarded where the Veteran has a service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound due to such service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i).

In June 2020, a decision review officer granted SMC at the housebound rate for the period from April 3, 2015, to July 1, 2015, when the Veteran underwent cervical spine surgery involving discectomy and fusion.  Statutory housebound criteria were met based on the award of a temporary total rating (TTR) for the Veteran's service-connected chronic cervical spine sprain with spondylosis and degenerative disc disease, and the presence of additional service-connected disabilities evaluated as 60 percent disabling or greater.

Outside of that period, however, the Veteran does not have a single, service-connected disability rating as totally disabling.  While he is rated totally disabled due to individual unemployability (TDIU), such has specifically been found to result from the combined effect of multiple conditions, and not to a single disability.  It cannot, therefore, support an award of SMC based on housebound status.  Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011).

Because the Veteran does not have a single service-connected disability rated as 100 percent disabling, and TTR is no longer in effect, there is no legal basis for awarding SMC or extending SMC at the housebound rate. The Veteran's claim is denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mary C. Suffoletta

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.