Youngblood: Multiple Service Connected Disorders And SMC

Youngblood v. Wilkie, Case Number 18-0378, decided September 12, 2019 a veteran seeking SMC at the housebound level based on an argument that multiple servicec connected disorders defined as “one disability” under 38 C.F.R. Section 4.16(a).  The Court ruled against the veteran.

The veteran was service connected for the left and right knees and initially granted a combined rating of 70%.  Subsequently, it was increased to a rating of 60% and 20% with a combined rating of 80% and TDIU was granted.  Later, the RO granted service connection for renal insufficiency and kidney disease with a staged rating of 60%, followed by 80%, and then 100%.  The veteran was also granted SMC (housebound) with an effective date of the 100% kidney disease rating.  The veteran sough an effective date of 2001 for SMC (housebound) and the Board denied.

38 U.S.C. § 1114(s) states:

If 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) by reason of such veteran's service-connected disability or disabilities, is permanently housebound, then the monthly compensation shall be $2,993. For the purpose of this subsection, the requirement of "permanently

housebound" will be considered to have been met when the veteran is substantially confined to such veteran's house (ward or clinical areas, if institutionalized) or

immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran's lifetime.

Id. at *1.  The Court then defined the issue as:

The only part of section 1114(s) at issue in this case is the opening clause. VA concluded that on September 4, 2012, the appellant became eligible for section 1114(s) benefits because the 3 RO assigned a 100% disability rating to his polycystic kidney disease effective on that date, causing it to become "a service-connected disability rated as total." 38 U.S.C. § 1114(s); R. at 1409. The appellant believes that he became eligible for section 1114(s) benefits on July 31, 2001, because the TDIU award that became effective on that date also is "a service-connected disability rated as total." The Secretary does not dispute the appellant's assertion that he met the other criteria for section 1114(s) benefits in July 2001. If, therefore, the appellant's argument is correct, then he will be entitled to receive the effective date that he requests.

The parties do not question the general meaning of the phrase "a service-connected disability rated as total." They agree that it means one single disability to which the agency has assigned a 100% disability rating. See VA Gen. Coun. Prec. 66-91 (Aug. 15, 1991); Guerra v. Shinseki, 642 F.3d 1046, 1049-50 (Fed. Cir. 2011). Multiple, separately rated disorders do not suffice, even if the combined disability rating of those disorders reaches 100%. Bradley v. Peake, 22 Vet.App. 280, 290-91 (2008). The appellant does not dispute that he was not entitled to a 100%

schedular disability rating for a single service-connected disability during the period under consideration

Id. at *2.

The Court then noted that caselaw plainly states TDIU based on a single service connected disorder is sufficient to meet the “a service-connected disability rated as total” requirement in section 1114(s) even if the VA assigned that disorder a rating less than 100%.  Id. at *2-3.  But, the Court noted the RO based the TDIU award in this case on the left and right knees.  Whereas 1114(s) has a single disability requirement.  The veteran attempted to satisfy the single disability requirement by reference to 4.16(a) (the one disability clause). 

The Court explained that 4.16(a) allows for a grant of TDIU by a rater (and does not require higher agency action) if certain requirements are met, if those requirements are not met, TDIU has to be gained through 4.16(b).  However, 4.16(a) only applies if the veteran’s assigned disability ratings reach certain baseline thresholds (namely a single disability of 60% or a ratable disability at 40% with a combined rating of 70%).  Id. at *5.  The Court then stated:

We conclude that, because the Secretary plainly stated that the purpose of the "one disability" phrase was to assist certain veterans in reaching the baseline disability rating

requirements to benefit from § 4.16(a), then no other purpose can be read into the regulation, including retaining the "one disability" designation to establish "a service-connected disability rated as total" for SMC eligibility. The unambiguous specificity of the Secretary's purpose clause is decisive and excludes all uses for the phrase "one disability" as it appears in § 4.16(a) other than the one provided.

Id. at *5.  The Court acknowledged the veteran argued application of that clause means that his service-connected disorders "are to be considered one disability for purposes of TDIU" and that he was "entitled to TDIU based on his single service-connected disability."  Id. at *6.  But rejected this position because it adds more to the regulation than its plain meaning can bear explain the one disability clause exists to determine whether a TDIU request is eligible to adjudicated under 4.16(a) as opposed to 4.16(b).  The Court determined “[d]eciding whether to aggregate disability ratings is the one and only purpose for considering disorders to be ‘one disability’ in Section 4.16(a).”  Id. at *6. 

As applied to this case, the Court stated that while the RO could deem the veteran’s bilateral leg disability one disability for purposes of entitlement to proceed under Section 4.16(a), “once the RO reached the adjudication phase of the appellant's TDIU request, the

‘one disability’ phrase had served its purpose and faded from view.”  Id. at *6.

In this case, the Court foreclosed the opportunity to use multiple disabilities used under 4.16(a) as “one disability” for purposes of SMC.  The conclusion is a limiting one for veterans.

This was a decision by Judge Pietsch and joined in by Judges Bartley and Meredith.

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