Citation Nr: 25008530 Decision Date: 06/27/25 Archive Date: 06/27/25 DOCKET NO. 16-63 774 DATE: June 27, 2025 ORDER Entitlement to special monthly compensation under 38 U.S.C. § 1114(s) is granted. FINDING OF FACT During the appeal period, the Veteran's breathing difficulty due to his multiple respiratory conditions that were ultimately deemed related to active service by the Agency of Original Jurisdiction (AOJ) in the 2016 award of service connection for cause of death alone supported a total disability rating due to individual unemployability (TDIU), and his additional service-connected disabilities combined to 60 percent or more. CONCLUSION OF LAW The criteria for special monthly compensation under 38 U.S.C. 1114(s) have been met. 38 U.S.C. §§ 1114(s), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.114, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1968 to July 1969, to include service in the Republic of Vietnam. The Veteran passed away in May 2014. The appellant is the Veteran's surviving spouse who has been accepted as a substitute claimant. This matter comes before the Board on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally filed a claim for increased rating for his service connected posttraumatic stress disorder (PTSD) on February 25, 2009. The AOJ granted an increased rating to 50 percent for PTSD in a March 2009 rating decision. The AOJ subsequently granted an increased rating to 70 percent for PTSD in a June 2011 rating decision. The Veteran also had filed a formal claim for TDIU in November 2009. The formal claim for a TDIU was denied in a May 2011 rating decision by the AOJ. The Veteran also filed another formal claim for TDIU in April 2012. See Veterans Application for Increased Compensation based on Unemployability (VA Form 21-8940). The claim to TDIU was granted in an April 2022 Board decision and assigned an effective date of April 18, 2012. The April 2022 Board decision also denied a claim for an increased rating for PTSD; denied claims for service connection for ischemic heart disease and tinnitus; denied the petitions to reopen the claim for service connection for malaria; and denied the appeal as to the timeliness of the notice of disagreement to appeal entitlement to service connection for insomnia, a gunshot wound to the buttocks and pneumonia. The appellant subsequently appealed the April 2022 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the Board's April 2022 decision as to the assignment of an effective date earlier than April 18, 2012 for the award of a TDIU and agreed that the Board failed to discuss whether the appellant may be entitled to special monthly compensation under 38 U.S.C. § 1114(k) and (s) and remanded those issues to the Board for adjudication. The appellant did not wish to pursue her appeals as to the issues of timeliness of the notices of disagreement submitted with respect to claims of entitlement to service connection for insomnia, a gunshot wound of the buttocks and pneumonia; entitlement to a rating in excess of 70 percent for PTSD; service connection for ischemic heart disease and tinnitus and the petition to reopen the claim for service connection for malaria. Therefore, the Board's April 2022 decision as to these issues is final. The Board granted an earlier effective date of February 25, 2009 for the award of a TDIU, denied entitlement to special monthly compensation under 38 U.S.C. § 1114(s) and remanded entitlement to special monthly compensation under 38 U.S.C. § 1114(k) in September 2023. The appellant subsequently appealed the Board's September 2023 decision to the Court. A November 2024 Memorandum Decision vacated the September 2023 Board decision as to the denial entitlement to special monthly compensation under 38 U.S.C. § 1114(s) and remanded the matter to the Board for further adjudication. The Board's assignment of an effective date of February 25, 2009 for the award of a TDIU was not challenged by the appellant and the Board's September 2023 decision as to that issue is final. An April 2024 rating decision granted the Veteran's claim for service connection for erectile dysfunction and assigned an initial rating. This rating decision also awarded special monthly compensation for the loss of use of a creative organ under 38 U.S.C. § 1114(k). As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Applicable Statutes and Regulations The effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351 (Fed.Cir.1999). A claim for TDIU, either expressly raised by the veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service connected disabilities is less than 100 percent and when it is found that the service connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, the disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the veteran is unemployable due to his service-connected disabilities, but the functional impairment caused solely by service-connected disabilities. In determining whether a veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 1. Entitlement to special monthly compensation under 38 U.S.C. § 1114(s) is granted. The November 2024 Memorandum Decision found that the Board's September 2023 decision did not substantially comply with a previous December 2022 Joint Motion for Partial Remand. Specifically, it found that the Board did reconcile the April 2022 Board decision finding that the Veteran's TDIU was based on a respiratory condition while VA also evaluated the Veteran's PTSD as 70 percent disabling with the Board's finding that special monthly compensation under 38 U.S.C. § 1114(s) was not warranted. As the Board did not reconcile its TDIU bases findings, the Court found that the Board did not sufficiently consider whether special monthly compensation under 38 U.S.C. § 1114(s) the Veteran's respiratory condition-which caused his death and VA found to be related to service-could form the basis of TDIU and be the service connected disability rated as total and whether the Veteran's 70 percent PTSD rating could be the additional service-connected disability independently ratable at 60 percent or more. VA's duty to maximize benefits requires it to assess all of a claimant's service connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, the Court held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a "total" rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, special monthly compensation based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230; Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280). A veteran with a 100 percent schedular rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the special monthly compensation requirements (100 percent rating plus 60 percent rating). A TDIU could meet the special monthly compensation requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a "total" (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for special monthly compensation. See Buie at 249-50. Historically, a November 2016 rating decision granted service connection for the cause of the Veteran's death as the evidence shows that the cause of death was related to his asthma noted during his military service. Indeed, the Rating Codesheet indicates "Grant, SC Death, Contributory. Cause of death: respiratory failure and severe chronic obstructive pulmonary disease with another significant condition of pneumonia." See November 2016 Rating Codesheet. An April 2022 Board decision granted TDIU based on breathing difficulty due to his multiple respiratory conditions that were ultimately deemed related to active service by the AOJ, effective April 18, 2012. The Veteran was separately rated for PTSD at 70 percent disabling, beginning on February 25, 2009. As noted, the Veteran's multiple respiratory conditions that the AOJ deemed related to active service were found to be service connected for cause of his death. The Board found in an April 2022 decision that the respiratory conditions alone had rendered the Veteran unemployable. See Browder v. Brown, 5 Vet. App. 268, 270 (1993) (questions settled on a former appeal of the same case are no longer open for review under the doctrine of the law of the case); Johnson v. Brown, 7 Vet. App. 25, 26 (1994)(the law of the case doctrine operates to preclude reconsideration of identical issues). The Board also observes at that time the Veteran's additional service connected disabilities combined to more than 60 percent disabling during that period, notably PTSD was rated 70 percent disabling. As such, the criteria for entitlement to special monthly compensation under section 1114(s) were met. Id. Accordingly, the Board finds that special monthly compensation under 38 U.S.C. § 1114(s) is warranted. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.