Citation Nr: 1620586	
Decision Date: 05/20/16    Archive Date: 05/27/16

DOCKET NO.  14-25 969	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

2.  Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C.A. § 1114(s).


REPRESENTATION

Veteran represented by:	Christopher Loiacono, Agent


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1992 to January 1993 and from February 1993 to June 1994.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

In his July 2014 Substantive Appeal (VA Form 9), the Veteran requested a Board hearing at a local VA office.  Thereafter, in August 2015, the Veteran submitted a written request to withdraw the hearing request.  The Board thus finds that there is no hearing request pending at this time.  38 C.F.R. § 20.702(e) (2015).

Subsequent to the AOJ's most recent adjudication of this case in a May 2014 Statement of the Case, the Veteran submitted additional evidence in support of his claim.  Under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board because the Veteran did not request in writing that the agency of original jurisdiction (AOJ) initially review such evidence.  See 38 U.S.C.A. § 7105(e)(1), (2) (West 2014) (applicable in cases where substantive appeal filed on or after Feb. 2, 2013).

As discussed in more detail below, the issue of entitlement to SMC at the housebound rate is raised by the record and is part and parcel of the claim for entitlement to a TDIU.  See Akles v. Derwinski, 1 Vet. App. 118 (1991) (noting that the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim).


FINDINGS OF FACT

1.  The Veteran's headache disorder precludes him from securing and following substantially gainful employment.

2.  Since November 13, 2014, the Veteran's remaining service-connected disability has an evaluation exceeding 60 percent and involves different anatomical segments or bodily systems.


CONCLUSIONS OF LAW

1.  The criteria for a TDIU are met.  38 U.S.C.A. §§ 1155, 5110(a), (b)(2) (West 2014); 38 C.F.R. §§ 3,102, 3.340, 3.341, 4.3, 4.16 (2015).

2.  Since November 13, 2014, the criteria for special monthly compensation at the housebound rate have been met.  38 U.S.C.A. §§ 1114(s), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 

As the Board's decision to grant the Veteran's claim of entitlement to a TDIU and SMC is completely favorable, no further action with respect to this issue is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992).

II. Entitlement to a TDIU

The Veteran contends that his headache disorder renders him unable to obtain and maintain substantially gainful employment.  Specifically, the Veteran asserts that his headache disorder makes it difficult for him to function because his prostrating attacks occur several times a day and require him to rest in a quiet and dark room.  See September 2010 Statement in Support of Claim; August 2010 VA 21-8940.  

Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities.  If a Veteran is found to be unemployable solely due to his service connected disabilities, then the case is to be referred to the Director of Compensation and Pension (C&P) for extraschedular consideration.  The question therefore becomes whether or not the Veteran is unable to secure or follow a substantially gainful occupation solely due to service connected disabilities.  38 C.F.R. § 4.16(b).

The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage).  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995).

While the Board is required to refer a claim for a TDIU award on an extraschedular basis to the Director for initial consideration, the Director's decision is not binding on the Board, nor must it be afforded the probative value of a medical opinion.  Rather, it is to be considered an administrative decision that the Board reviews de novo, and the Board may grant a TDIU on an extraschedular basis after the issue has first been considered by the Director.  38 C.F.R. § 4.16; see Wages v. McDonald, 27 Vet. App. 233 (2015) (Board is authorized to award an extraschedular TDIU after obtaining the Director's decision).

In the present case, the Veteran's headache disorder is assigned the maximum schedular rating of 50 percent; thus, he does not meet the schedular requirement for a TDIU pursuant to 38 C.F.R. § 4.16(a).  In June 2011, the AOJ referred the issue of entitlement to a TDIU on an extraschedular basis to the Director of Compensation and Pension (C&P), who determined that a TDIU was not warranted on an extraschedular basis.  See June 2011 Administrative Review Memorandum.  Accordingly, the Board has jurisdiction to review that determination on a de novo basis.  See Anderson v. Shinseki, 22 Vet. App. 423 (2009).

After careful consideration of the entire record, the Board must disagree with the Director's decision.  In this case, the evidence shows that the Veteran is unable to obtain and maintain substantially gainful employment consistent with his education and occupational experience because of his service-connected headache disorder.

The record reveals that the Veteran last worked in August 2010 as a shift manager at Pizza Hut, a job he left because he was unable to do the job and because he missed too much work.  See September 2010 VA 21-4192; August 2010 VA 21-8940.  The Veteran's previous work experience involved similar retail jobs and truck driving.  See August 2010 VA 21-8940; June 1999 VA 21-8940; May 1999 VA Examination Report.  The Veteran has a high school education.  See August 2010 VA 21-8940.

During a December 2008 VA examination in connection with an increased rating claim, the examiner noted that the Veteran's headaches result in an inability to concentrate.

The Veteran was afforded a VA General Medical Examination in October 2010.  After examining the Veteran and reviewing the claims file, the examiner diagnosed the Veteran with "severe migraine, persistent type with photophobia."  The examiner indicated that the Veteran's headaches limit most physical activity and have the following effects on occupational activities: memory loss, decreased concentration, poor social interactions, difficulty following instructions, and pain.  The examiner opined that the Veteran's service-connected migraines are "sufficient to render him unemployable."  The examiner also stated that the Veteran's non service-connected problems "are not a factor in this case."  

In an October 2013 statement, the Veteran's VA treating physician indicated that the Veteran experiences headaches of a severity of 9/10 more than twice a week and that the Veteran's headaches result in vertigo, nausea/vomiting, photosensitivity, visual disturbances, and mood changes.  The physician also opined that the Veteran is not capable of performing gainful employment due to the symptoms and limitations stemming from his headache impairment.  In another October 2013 statement, the Veteran's VA treating psychiatrist opined that the Veteran is not capable of performing gainful employment due to his headache disorder because he has difficulty functioning consistently due to headaches that occur unpredictably.  

Also of record are numerous statements from co-workers and friends.  In a September 2010 statement, one of the Veteran's co-workers at Pizza Hut indicated that when the Veteran would get a headache, he was not able to concentrate on running his shift and his performance would suffer.  In similar statements, the Veteran's friends, neighbors, and wife all reported that the Veteran's headaches significantly impact his functioning.  

Based on the evidence of record, the Board finds that the Veteran is unemployable due to his service-connected headache disorder.  The Veteran has consistently reported that he is unable to work due to his headache disorder and the medications he takes for his headaches.  Additionally, the statements from his friends and family corroborate his account.  Moreover, as noted above, multiple VA physicians and a VA examiner have opined the Veteran's headache disorder renders him unemployable.  Accordingly, the preponderance of the evidence shows that the Veteran's headache disorder prevents him from being able to continue to perform the tasks required of a retail shift manager.  Further, the Veteran's prior work experience and education level show that the Veteran does not have additional vocational training or skills that would allow for gainful employment in more sedentary work.  Moreover, his physical limitations due to his headache disorder would make working in any setting difficult.

Therefore, given the severity of the Veteran's service-connected headache disorder and the limitations caused by that disability in conjunction with his education and work history, the Board finds that his service-connected headache disorder precludes him from obtaining and maintaining substantially gainful employment.  See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) ("[A] mere theoretical ability to engage in substantial gainful employment is not sufficient... The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.").  Accordingly, the Board finds that entitlement to a TDIU is warranted.

III. Entitlement to SMC

Entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue.  Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008).  Accordingly, this issue has been added for appellate consideration, as reflected on the cover sheet of this opinion.  There is no prejudice to the Veteran in the Board considering entitlement to SMC in the first instance, as eligibility for this benefit turns solely on the application of law, and the Board's decision is favorable to the extent permitted by law, as discussed below.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that where the Board addresses a question that has not been addressed by the AOJ, the Board must consider the potential for prejudice to the appellant).

SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated at 100 percent and one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).  For the purposes of a single 100 percent disability, a grant of a TDIU based on a single disability can qualify.  See Bradley v. Peake, 22 Vet. App. 280 (2008).

The Board's decision above grants a TDIU based solely on the Veteran's headache disorder.  Service-connection is also in effect for major depressive disorder, rated as 100 percent disabling since November 13, 2014.  Thus, for the period since November 13, 2014, the Veteran has had a service-connected disability rated as total and an additional anatomically distinct service-connected disability, which is independently ratable at 60 percent or above.  Accordingly, entitlement to SMC at the housebound rate under 38 U.S.C.A. § 1114(s) is granted, effective that date.  This grant is intended as an entirely favorable decision in a matter raised by the record and addressed for the first time by the Board and is not to be construed as precluding a claim for any higher level of special monthly compensation or an award of special monthly compensation for an earlier period of time.


ORDER

Entitlement to a TDIU is granted, subject to regulations applicable to the payment of monetary benefits.

Effective November 13, 2014, entitlement to special monthly compensation at the housebound rate under 38 U.S.C.A. § 1114(s) is granted.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs