Citation Nr: A21012520 Decision Date: 07/22/21 Archive Date: 07/22/21 DOCKET NO. 210419-154224 DATE: July 22, 2021 ORDER An effective date prior to February 8, 2021, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. An effective date prior to September 17, 2010 for the award of special monthly compensation (SMC) at the housebound rate pursuant to 38 U.S.C. § 1114(s) is denied. FINDINGS OF FACT 1. The Veteran is in receipt of a 100 percent rating for posttraumatic stress disorder (PTSD) from November 23, 2010. 2. The Veteran is assigned a 100 percent combined disability rating effective from August 5, 2010. 3. The Veteran is in receipt of SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) from September 17, 2010. 4. Prior to September 17, 2010, the Veteran did not have a single service-connected disability rated as 100 percent disabling and he was not permanently housebound. 5. The Veteran was not unemployable due to a service-connected disability alone for the period prior to September 17, 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 8, 2021, for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400; 4.16. 2. The criteria for an effective date prior to September 17, 2010, for the award of SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) have not been met. 38 U.S.C. §§ 1114(s), 5110; 38 C.F.R. §§ 3.400, 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1959 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2021 Appeals Modernization Act (AMA) decision. The Veteran timely appealed this rating decision to the Board by submitting a VA Form 10182 in April 2021 and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Under direct review, the Board cannot hold a hearing or accept additional evidence into the record. 38 C.F.R. § 20.301. Therefore, the Board will consider the evidence of record as of the date of the February 2021 AMA rating decision. Id. 1. Entitlement to an earlier effective date for the award of a TDIU. The Veteran's representative has contended that an effective date of August 5, 2008, is warranted for the award of a TDIU. See April 2021 correspondence. Unless specifically provided otherwise, the effective date of an evaluation and award of pension, compensation, or indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In particular, determining the appropriate effective date for an increased rating involves an analysis of the evidence to determine (1) when a claim for an increased rating was received, and (2) when the increase in disability actually occurred. 38 C.F.R. § 3.400 (o)(2). TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). A TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Historically, on August 5, 2010, the Veteran filed a claim for an increased rating for his service-connected left ankle disability. Thereafter, on November 23, 2010, the Veteran filed an informal claim for service-connection for PTSD. In August 2018, the Board accepted jurisdiction of an appeal for the issue of entitlement to increased ratings for the Veteran's service-connected left ankle disability. The Board granted entitlement to an evaluation of 30 percent, but not higher, for a left ankle fracture status post fusion prior to July 11, 2014 (excluding a temporary total disability rating from September 17, 2010, to March 1, 2011). The Board also denied entitlement to an evaluation in excess of 20 percent for the service-connected left ankle disability on or after July 11, 2014. In so doing, the Board noted that the issue of entitlement to a TDIU would be addressed in the remand section of the decision. In September 2020, the Board, in relevant part, adjudicated claims for increased disability ratings for service-connected left foot hallux valgus, right foot plantar fasciitis with hallux valgus, and patellofemoral pain syndrome of the right knee. The Board remanded the issue of entitlement to a TDIU as inextricably intertwined with the remanded claims for service connection for tinnitus and an increased rating for the service-connected PTSD. In addition, the Board instructed the Agency of Original Jurisdiction (AOJ) to consider whether the Veteran was entitled to TDIU based on a single disability for purposes of entitlement to SMC under 38 U.S.C. § 1114(s). In a February 2021 rating decision, the RO granted TDIU based on service-connected PTSD alone effective from February 8, 2021. In so doing, the RO stated that, prior to February 8, 2021, the evidence demonstrated that the Veteran was not working as a result of both physical and mental impairment. On April 13, 2021, the Board granted entitlement to a 100 percent evaluation for the service-connected PTSD and SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) for "the entire appeal period." On April 19, 2021, the Veteran submitted VA Form 10182 with the February 2021 rating decision, in which he expressed disagreement with the effective date assigned for the award of a TDIU. In a May 2021 rating decision, the RO effectuated the Board's April 2021 decision. In so doing, the RO assigned a 100 percent evaluation for PTSD effective from November 23, 2010. The RO also awarded SMC at the housebound rate, effective from September 17, 2010. The Board notes that the issue of entitlement to a TDIU was raised during the Veteran's legacy appeal for increased ratings for his service-connected PTSD, left ankle, right foot, left foot, and right knee disabilities. Although the issues of entitlement to increased disability ratings for these disabilities are no longer on appeal, the issue of entitlement to a TDIU became part and parcel of the underlying increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board further notes that the February 2021 rating decision was the initial decision on the issue of the effective date for the award of TDIU. Therefore, the Appeals Modernization Act (AMA) review system applies. The record reflects that the Veteran has been unemployed throughout the entire appeal period. The Veteran is a high school graduate. See, e.g., April 2012 VA psychiatric examination. Following his separation from service, the Veteran was employed as a foreman for a chemical company. The Veteran also owned a transmission shop where he supervised various employees until 1986. He worked for a specialized tele-system company where he was eventually promoted to president, but the company went out of business in 1998. The Veteran subsequently worked for an excavation company running heavy machinery until 2003. See, e.g., April 2012 VA psychiatric examination. The Veteran is currently assigned a 100 percent evaluation for his service-connected PTSD effective from November 23, 2010. He is also assigned a 100 percent combined disability rating effective from August 5, 2010. The Board notes that the presence of a 100 percent disability rating does not necessarily render the issue of TDIU moot. In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114(s). The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. In this case, the Veteran has contended that he is entitled to an earlier effective date for the award of a TDIU based on his service-connected PTSD alone. See April 2021 appellate brief. The Veteran contends that an effective date of August 5, 2010 is warranted for the award of TDIU. Id. In April 2021, the Board granted entitlement to a 100 percent evaluation for PTSD and SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) for "the entire appeal period." In May 2021, the RO effectuated the Board's decision and assigned a 100 percent evaluation for the service-connected PTSD effective from November 23, 2010, the date of the Veteran's claim for service connection for PTSD. The RO also awarded SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) effective from September 17, 2010. As the Veteran has already been awarded SMC at the rate under 38 U.S.C. § 1114(s) (the only remaining benefit for which the assignment of a TDIU evaluation would be beneficial), the issue of entitlement to a TDIU on and after September 17, 2010 is moot. See 38 C.F.R. § 4.16(a); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Prior to August 5, 2010, the Veteran was assigned a 10 percent disability rating for his service-connected left ankle fracture status post fusion (excluding a temporary total rating form April 19, 1988 to August 31, 1988). In a March 2007 rating decision, the RO continued a 10 percent evaluation for the service-connected left ankle disability. The Veteran did not appeal that decision disagreement or submit new and material evidence within one year of receiving notice of the decision. The Veteran is assigned a 100 percent combined disability rating effective from August 5, 2010 to September 17, 2010. During this period, the Veteran was service-connected for a left ankle fracture, rated as 30 percent disabling; right upper extremity radiculopathy, rated as 40 percent disabling; left upper extremity radiculopathy, rated as 30 percent disabling, lumbar spine osteoarthritis with degenerative joint disease, rated as 20 percent disabling; cervical spine degenerative arthritis status post cervical fusion, rated as 20 percent; radiculopathy of the right lower extremity, rated as 20 percent disabling; radiculopathy of the left lower extremity, rated as 20 percent disabling; a left hip strain, rated as 10 percent disabling; left hip limitation of extension, rated as noncompensable; left hip limitation of extension, rated as noncompensable; and a right ankle strain rated as noncompensable. The issue of entitlement to a TDIU was raised during the Veteran's legacy appeal, which included the issues of entitlement to increased ratings for the Veteran's service-connected PTSD, left ankle, right foot, left foot, and right knee disabilities. However, the effective date for the award of a TDIU cannot be earlier than the effective date of service connection for the underlying disability or disabilities. Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019). The Veteran's right foot plantar fasciitis with hallux valgus, left foot hallux valgus, and right knee patellofemoral syndrome were service connected after September 17, 2010. See July 2012 rating decision. The Veteran certainly experienced difficulties as a result of his service-connected left ankle, right ankle, right upper extremity radiculopathy, left upper extremity radiculopathy, right lower extremity, left lower extremity, lumbar spine, cervical spine, and left hip disabilities. However, the evidence of record does not support that he was unable to perform the physical and mental acts required by employment due to his disabilities individually prior to September 17, 2010. During a September 2010 VA ankle examination, the Veteran reported that he was unable to work due to lack of endurance, feeling depressed due to pain, and not being able to enjoy life. The examiner opined that the Veteran's left ankle disability caused partial impairment on his ability to perform physical activities of employment and activities of daily living. During the September 2010 examination, the Veteran reported having symptoms of weakness, stiffness, swelling, giving way, lack of endurance, fatigability, deformity, tenderness, and pain. The Veteran did not have any incapacitating episodes, but he reported having flare-ups as often as once per day that lasted one day in duration. The Veteran described his pain as a 10 on a scale from 1 to 10. A physical examination of the Veteran revealed leg length discrepancy, which the examiner found to be non-significant. The examiner stated that the Veteran had ankylosis at 0 degrees of left ankle dorsiflexion, which was a favorable position. The Veteran's left ankle was stable and painful with edema, effusion, and tenderness. There were no signs of instability, abnormal movement, weakness, redness, heat, deformity, guarding, malalignment, drainage, or deformity. In an April 2012 VA ankle examination, the Veteran reported having right ankle pain when standing. He reported having daily flare-ups with non-radiating pain. His pain was exacerbated by physical activity and relieved by rest and medication. In an April 2012 VA knee examination, the examiner opined that the Veteran's bilateral patellofemoral pain syndrome caused partial impairment in his ability to perform the physical activities of employment. In an April 2012 VA foot examination, the Veteran reported having pain when standing and constant flare-ups with non-radiating, moderate pain. The examiner characterized the Veteran's right hallux valgus as mild or moderate and noted that no surgery had been performed. The examiner opined that the Veteran's service-connected right and left foot disorders caused partial impairment in his ability to perform the physical activities of employment. The Board has considered the Veteran's education, training, and work history as reflected in the record, as well as the lay and medical evidence regarding the functional impairment caused by his service-connected disabilities. The Veteran has experience as a supervisor and president for a company. He is also a high-school graduate. Given the Veteran's specific history and disability picture, the evidence supports that the Veteran could perform some forms of employment prior to September 17, 2010 when considering his service-connected disabilities alone. Based on the foregoing, the evidence shows that the Veteran has been awarded a combined 100 percent rating effective from August 5, 2010, and the Veteran is not prevented from obtaining/maintaining substantial gainful employment due to any of his service-connected disabilities alone for the period prior to September 17, 2010. Therefore, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 54-56. 2. Entitlement to an earlier effective date for the award of SMC pursuant to 38 U.S.C. § 1114(s). The Veteran's and his representative have contended that an earlier effective date is warranted for the award of SMC pursuant to 38 U.S.C. § 1114(s). See April 2021 correspondence. Unless specifically provided otherwise, the effective date of an evaluation and award of pension, compensation, or indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Under 38 U.S.C. § 1114(s), special monthly compensation (SMC) is payable at the housebound rate if the veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is 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) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i)(1). Historically, in a January 2019 rating decision, the RO awarded SMC based on housebound criteria for the period from September 17, 2010 to March 1, 2011 during which the Veteran was assigned a temporary total rating for his service-connected left ankle disability. The RO noted that the Veteran had additional service-connected disabilities of left lower extremity radiculopathy, right lower extremity radiculopathy, osteoarthritis of lumbar spine, independently ratable at 60 percent or more from September 17, 2010 to March 1, 2011. The Veteran was provided notice of the rating decision by a May 3, 2019 letter. In a September 2020 remand, the Board instructed the AOJ to consider whether the Veteran was entitled to TDIU based on a single disability for purposes of entitlement to SMC under 38 U.S.C. § 1114(s). In a February 2021 rating decision, the RO granted SMC based on housebound criteria pursuant to 38 U.S.C. § 1114(s) effective from February 8, 2021. The RO awarded SMC based on TDIU due to the service-connected PTSD alone and additional service-connected cervical spine, right lower extremity radiculopathy, left lower extremity radiculopathy, lumbar spine, sleep apnea, left upper extremity radiculopathy, right upper extremity radiculopathy, and migraine headaches, independently ratable at 60 percent or more from February 8, 2021. In April 2021, the Board granted entitlement to a 100 percent rating for PTSD and SMC at the housebound rate for the entire period on appeal. The Board granted SMC based on a 100 percent rating for PTSD with additional separate disabilities ratable at 60 percent or more for the "entire period on appeal." 38 U.S.C. § 1114(s). On April 19, 2021, the Veteran submitted a VA Form 10182 expressing disagreement with the February 2021 rating decision pertaining to the effective dates assigned for the award of SMC based on housebound criteria. In a May 2021 rating decision, the RO effectuated the Board's April 2021 decision. The RO noted that SMC under 38 U.S.C. § 1114(s) was awarded effective from September 17, 2010, on account of the Veteran's service-connected left ankle rated as 100 percent disabling and additional service-connected disabilities of right upper extremity radiculopathy, left upper extremity radiculopathy, and lumbar spine disabilities independently ratable at 60 percent or more effective from September 17, 2010. The RO also stated that the effective date of September 17, 2010 was continued due to the 100 percent disability rating assigned for the service-connected PTSD from November 23, 2010. The issue of entitlement to SMC under 38 U.S.C. § 1114(s) was raised during the Veteran's legacy appeal, which included the issues of entitlement to increased ratings for the Veteran's service-connected PTSD, left ankle, right foot, left foot, and right knee disabilities. The current appeal stems from the February 2021 rating decision that awarded SMC at the housebound rate for TDIU based on service-connected PTSD and additional service-connected disabilities independently ratable at 60 percent or more. The initial decision first addressed the downstream issue of the effective date assigned for SMC at the housebound rate other than a temporary period of SMC. Therefore, the Appeals Modernization Act (AMA) review system applies. At the time of the February 2021 rating decision, the Veteran was assigned a 70 percent evaluation for his service-connected PTSD. The RO awarded SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) finding that the PTSD rated as less than 100 percent supported a TDIU effective from February 8, 2021. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that a TDIU rating could qualify for compensation at the 38 U.S.C. § 1114(s) rate, but only if the TDIU was based on a single disability). However, as discussed above, the Veteran was subsequently assigned a 100 percent evaluation for his service-connected PTSD effective from November 23, 2010 and was assigned SMC at the house bound rate effective from September 17, 2010. Therefore, consideration of whether the Veteran is entitled to SMC at the housebound rate is limited to the period prior to September 17, 2010. The Board notes that, from August 5, 2010 to September 17, 2010, the Veteran was assigned a 100 percent combined disability rating and, prior to September 17, 2010, he did not have a single service-connected disability rated as 100 percent with additional service-connected disability or disabilities independently ratable at 60 percent. (Continued on the next page) As discussed above, an earlier effective date for the grant of a TDIU is not warranted prior to September 17, 2010. As such, the Veteran is not in receipt of a TDIU based on a service-connected disability alone prior to September 17, 2010. The evidence also does not otherwise support an award of SMC at the housebound rate on any other basis of entitlement. Accordingly, an effective date prior to September 17, 2010, for the grant of SMC pursuant to 38 U.S.C. § 1114(s) at the housebound rate is not warranted. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.