Citation Nr: 1806629 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 06-07 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an initial compensable rating for unspecified depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Entitlement to special monthly compensation based on housebound status from since June 14, 2016. REPRESENTATION Veteran represented by: Dennis L. Peterson, Attorney at Law WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from June 1985 to June 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2005 (increased rating for cervical muscle strain and cephalgia) and September 2016 (grant of service connection for unspecified depressive disorder) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2006, the Veteran testified at a videoconference hearing held before a RO hearing officer on the issues of increased ratings for cervical muscle strain and cephalgia. A copy of that transcript has been associated with the electronic record. The Veteran testified at a September 2006 Travel Board hearing before a Veterans Law Judge (VLJ) on the issues of increased ratings for cervical muscle strain and cephalgia. A copy of that transcript has been associated with the electronic record. The VLJ is no longer employed by the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2074). In a May 2011 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board and that he had the right to another hearing. See 38 C.F.R. § 20.717 (2017). The Veteran indicated he did not wish to appear for a hearing in a response dated June 1, 2011. In September 2011, the Board denied the issue of an increased rating for chronic cervical strain and remanded the issue of an increased rating for cephalgia for further development. The Board also took jurisdiction of the issue of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the issue for further development. In November 2012, the Board denied entitlement to a rating in excess of 30 percent for cephalgia and TDIU. The Veteran appealed those denials to the United States Court of Appeals for Veterans Claims (the Court). In a February 2014 memorandum decision, the November 2012 Board decision was set aside and remanded for compliance with instructions. In July 2014, the Board remanded the issues of an increased rating for cephalgia and TDIU for further development. In August 2015, the Board granted a 50 percent disability rating for cephalgia and remanded the TDIU claim for further development. As explained below, the Board is granting TDIU prior to June 14, 2016, based on his service-connected disabilities other than the service-connected psychiatric disorder. Moreover, as explained below, the Board is granting a 70 percent disability for the service-connected psychiatric disorder since June 14, 2016. The Board observes that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB, 6 Vet. App. at 38; see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that special monthly compensation "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim" and remanding, pursuant to VA's duty to maximize benefits, for VA to determine whether the Veteran's posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to special monthly compensation). Therefore, the issue of entitlement to special monthly compensation based on housebound status since June 14, 2016, is before the Board at this time. In light of the decision below, the Veteran is not prejudiced by the Board's consideration of the issue of entitlement to special monthly compensation. Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the above, the issues are as stated on the first two pages of this decision. In September 2017, the Veteran's counsel waived initial consideration of additional evidence received since a May 2016 supplemental statement of the case and a November 2016 statement of the case. 38 C.F.R. § 20.1304(c) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The evidence is in equipoise as to whether the current level of severity of the unspecified depressive disorder has been occupational and social impairment with deficiencies in most areas due to difficulty in adapting to stressful circumstances (including work and a worklike setting) since June 14, 2016. 2. The evidence is in equipoise as whether the baseline level of severity of the unspecified depressive disorder is not at least an occupational and social impairment due to mild or transient symptoms or symptoms controlled by continuous medication. 3. The evidence is in equipoise as to whether the entire current level of severity of the unspecified depressive disorder since June 14, 2016, is attributable to the aggravation by the service-connected headache disorder. 4. Since March 14, 2005, the Veteran has been service-connected for the following disabilities: cephalgia, chronic cervical muscle strain, hyperextension injuries of the left thumb and ring finger, and chronic atopic dermatitis of the right lower leg. 5. Since March 14, 2005, these service-connected disabilities have been rated as 60 percent disabling with the cephalgia and chronic cervical muscle strain being of the same etiology and being rated as 60 percent disabling combined. 6. The evidence is in equipoise as to whether the Veteran's service-connected cephalgia, chronic cervical muscle strain, hyperextension injuries of the left thumb and ring finger, and chronic atopic dermatitis of the right lower leg have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since March 14, 2005. 7. Since June 14, 2016, the service-connected disabilities other than unspecified depressive disorder are now rated as 100 percent disabling and the unspecified depressive disorder is now independently rated 70 percent disabling. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial 70 percent rating for unspecified depressive disorder since June 14, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.310, 4.3, 4.7, 4.130, Diagnostic Code 9435 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a total disability rating based on individual unemployability due to service-connected disability have been met since March 14, 2005. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2017). 3. The criteria for special monthly compensation based on housebound status since June 14, 2016, have been met. 38 U.S.C. §§ 1114 (2012); 38 C.F.R. §§ 3.350, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Based on the decision below, the Board does not have to address whether VA complied with the duties to notify and assist as the TDIU and special monthly compensation issues. As for the TDIU claim, the Board further finds there has been substantial compliance with the directives of its September 2011, July 2014, and August 2015 remands. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) As for the claim for an increased rating for unspecified depressive disorder, VA's duty to notify was satisfied by a letter dated in June 2016. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his counsel has raised any issues with the duty to notify or duty to assist. See Scott, 789 F.3d at 1381 (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Entitlement to an initial compensable rating for unspecified depressive disorder Governing law and regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. For issues involving the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case with respect to the Veteran's claim for an initial increased rating, the entire history of the disability must be considered and, if appropriate, staged ratings may be assigned. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. Major depressive disorder and unspecified depressive disorder are evaluated under the general rating formula for mental disorders. Under those criteria, a zero percent rating is assigned for a mental condition that has been formally diagnosed but the symptoms are not severe enough to either interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9434, 9435 (2017). A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or require continuous medication. Id. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Where a service-connected disability aggravates a non-service-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). Analysis In the September 2016 rating decision, the RO granted service connection for an unspecified depressive disorder on the basis of aggravation by the service-connected headache disorder effective June 14, 2016, and assigned a zero percent disability rating effective that same date. Though the RO rated the psychiatric disorder under Diagnostic Code 9434 (major depressive disorder), the Board finds that the psychiatric disorder is more appropriately rated under Diagnostic Code 9435 (unspecified depressive disorder). In any event, both disorders are rated under the general rating formula for mental disorders. The RO assigned a zero percent disability rating on the basis that the current level of severity for the depressive disorder is 30 percent disabling and the baseline level of severity for the depressive disorder is 30 percent disabling. In other words, the RO found no increase in severity of the depressive disorder due to aggravation by the service-connected headache disorder. In addition to the diagnosis of a depressive disorder, the medical evidence shows a diagnosis of a neurocognitive disorder with behavioral disturbances due to a traumatic brain injury (TBI) in 2003. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Moreover, there is conflicting medical evidence on the current and baseline severities of the depressive disorder. The June 2016 VA examination report reflects that the examiner noted that it is not possible to differentiate what symptoms are attributable to each diagnosis. In particular, the examiner stated that there is considerable overlap between the mood changes that came with the TBI in 2003 and the mood issues related to other factors, including the chronic pain and other issues. The examiner added that there is no way to fully differentiate how many of his mood symptoms are due to the aftereffects of the TBI versus mood symptoms related to other factors. The examiner noted that part of the reason is the mood symptoms reflected in the depressive-disorder diagnosis represent a label for worsening baseline mood symptoms from the TBI. The examiner further stated that most of his symptoms are clearly due to the late effects of TBI, as reflected in the major neurocognitive disorder with behavioral disturbance, and that these issues include very poor impulse control, poor control of his temper, and fairly persistent mood symptoms. The VA examiner opined that it is as at least as likely as not that the Veteran's depressed mood is significantly aggravated by the headache pain. The examiner stated that it is clear from his records that his mood problems would have occurred even if his headaches were not so persistent. The examiner further noted that at the same time, his records note that headache pain has increased over the past few months. The examiner indicated that it is also clear from his records that his neurocognitive disorder from the TBI in 2003 makes it difficult for him to handle any type of stress, including the stress associated with chronic pain, and that with increased levels of pain, there is a commensurate increase in his negative emotions and decreased ability to handle negative emotions. The VA examiner stated that the Veteran had a total occupational and social impairment from all mental diagnoses. The examiner reported that the Veteran had depressed mood, impairment of short- and long-term memory, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a worklike setting), and impaired impulse control (such as unprovoked irritability with periods of violence). In an August 2016 addendum, the VA examiner stated that the type of aggravation of the depressive symptoms by the headache pain is temporary and that few things permanently aggravate a mental health condition such as depression. The examiner noted that in this case, there was an increase in headache pain over the several months prior to when he was seen and that the depressive symptoms are aggravated when the headache pain is present. The examiner indicated that should the headache pain become reduced, the aggravation would also diminish proportionately, and that to the degree that headache pain is permanent, then the aggravation is permanent. The examiner added that it is clear from the records that depressive symptoms are not caused solely by headaches. The examiner stated that he cannot determine if the headache pain is permanent or not. The examiner concluded that there is no clinical basis for determining clear baseline manifestations for depression prior to a few months ago. The examiner stated that there have been well-documented (and significant) mood and behavioral problems due to the TBI and that these issues will exist regardless of the level of headache pain. The examiner opined that given the severe nature of TBI-related condition, it is likely that the increase in depressive symptoms is not more than mild to moderate in severity. The examiner added that there is evidence from the treatment records that the Veteran would be severely disabled even without the headaches. The examiner further noted that his level of subjective distress is much worse when he is having headache pain, but that his level of social/occupational impairment is not likely affected by the increased mood symptoms. VA treatment records reflect that the Veteran underwent neuropsychological testing. The diagnostic impression was a mild neurocognitive disorder due to TBI. In an October 2016 addendum, the VA examiner stated that there is no reliable way to completely differentiate symptoms but that he would attempt to do so with a medium degree of certainty, which was defined as "as likely as not." The examiner indicated that the depressed mood is likely due mostly to the depressive disorder whereas as the memory impairment is likely due mostly to the neurocognitive disorder. As to difficulty adapting to stressful circumstances, the examiner indicated that this symptom is attributable to both disorders because both depression and impaired cognitive ability can affect stress tolerance. The examiner stated that the impaired impulse control is likely due mostly to the neurocognitive disorder. In a September 2017 statement, the Veteran's treating VA psychiatrist stated that the major depressive disorder is moderate in nature. The psychiatrist added that the Veteran reported that his depressive symptoms began after he began suffering from severe headaches. The psychiatrist opined that the headaches more likely than not have been a significant contributing factor to his major depressive disorder. Difficulty in adapting to stressful circumstances (including work or a work-like setting) is an example of the criteria for a 70 percent disability rating. Given that the VA examiner stated that this symptom is attributable to the depressive disorder and given that the VA treating psychiatrist stated that the depressive disorder is moderate in severity, the evidence is in equipoise as to whether the current level of severity of the depressive disorder has been an occupational and social impairment with deficiencies in most areas due to difficulty in adapting to stressful circumstances (including work and a worklike setting) since June 14, 2016. Turning to whether the current level of severity of the depressive disorder is manifested by a total occupational and social impairment, the VA examiner did state that the Veteran has a total occupational and social impairment. That said, the VA examiner indicated that the memory impairment and impulse control were attributable only to the non-service-connected neurocognitive disorder. Moreover, the Veteran's treating psychiatrist described the depressive disorder as only being moderate in nature. In addition, there is no evidence of any of the following: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Thus, the evidence of record does not more nearly approximate the criteria for 100 percent as total occupational and social impairment due to the depressive disorder is not shown. As for the baseline level of severity of the depressive disorder, the VA examiner initially opined that it is as at least as likely as not that the Veteran's depressed mood is significantly aggravated by the headache pain. In the August 2016 addendum, the examiner stated that the type of aggravation of the depressive symptoms by the headache pain is temporary. The examiner, however, added that to the degree that headache pain is permanent, then the aggravation is permanent. The examiner stated that he cannot determine if the headache pain is permanent or not. The medical evidence shows that the headache symptomatology is permanent in nature. The examiner concluded that there is no clinical basis for determining clear baseline manifestations for depression prior to a few months ago. The Veteran's treating psychiatrist opined that the headaches more likely than not have been a significant contributing factor to his major depressive disorder. In light of the above, the evidence is in equipoise as whether the baseline level of severity of the unspecified depressive disorder is not at least an occupational and social impairment due to mild or transient symptoms or symptoms controlled by continuous medication, the criteria for a 10 percent disability rating. Therefore, the evidence is in equipoise as to whether the entire current level of severity of the unspecified depressive disorder since June 14, 2016, is attributable to the aggravation by the service-connected headache disorder. As such, a 70 percent disability rating for unspecified depressive disorder since June 14, 2016, is warranted. Entitlement to TDIU Governing Law and Regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities resulting from a common etiology or a single accident will be considered a single disability. 38 C.F.R. § 4.16(a). Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Analysis Since March 14, 2005, the Veteran has been service-connected for the following disabilities: cephalgia, chronic cervical muscle strain, hyperextension injuries of the left thumb and ring finger, and chronic atopic dermatitis of the right lower leg. Since March 14, 2005, these service-connected disabilities have been rated as 60 percent disabling. Since the cephalgia, chronic cervical muscle strain are of a common etiology, they can be combined for purposes of 38 C.F.R. § 4.16(a). Combined, these two disabilities are rated as 60 percent disabling. 38 C.F.R. § 4.25. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) since March 14, 2005. The Board notes that since June 14, 2016, the Veteran has been service-connected for unspecified depressive disorder. Based on the assignment of the 70 percent disability rating he is entitled to consideration under 38 C.F.R. § 4.16(a) since June 14, 2016, as his overall disability rating is 90 percent with two disabilities rated over 40 percent disabling. Based on the decision below, the Veteran is not prejudiced by the Board's consideration of only disabilities that have been service-connected prior to June 14, 2016, for the entire period from March 14, 2005, to the present since a grant of TDIU based on disabilities other the psychiatric disorder result in consideration for special monthly compensation. In his various formal TDIU applications, the Veteran reported that he has not worked for pay since 2003 when he was a laborer and concrete finisher for a construction company. He completed high school and has an associate's degree in computer-aided drafting, which he completed in May 2005. He had a non-paid position in the latter half of 2005 that he was unable to maintain due to memory impairment. He also has a photography hobby. He is able to sell his photographs and cover the cost of his supplies. The Board initially notes that the Veteran's headache disorder worsened after a post-service motor vehicle accident in 2003. The evidence also shows that he has had a neurocognitive disorder since the accident in 2003. An October 2015 VA examination report shows diagnoses of service-related cephalgia and post-traumatic headaches beginning in 2003. The Board again notes that it is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. See Mittleider, 11 Vet. App. at 182. As to the nature of the headache disorder, a February 2012 VA examiner opined that the Veteran's current headache disorder is due to the post-service motor vehicle accident and not the service-connected headaches, and that he is unemployable due to the current headache disorder. In a May 2012 addendum, the VA examiner opined that the increase in headaches is subsequent and due to the significant head injury from the motor vehicle accident in 2003. In a December 2014 examination report, the same VA examiner stated that based on the notations before and after the motor vehicle accident in 2003, the Veteran's headaches were present and appeared to be manageable before the accident and that the headaches became markedly worse after the accident. The November 2015 VA examiner noted that the post-traumatic headaches account for 75 percent of the Veteran's reported symptoms. As noted by the Court in its February 2014 memorandum decision, the February 2012 VA examiner determined that the headaches prior to the 2003 accident were well controlled. As the Court noted, the April 2003 VA examination report reflects that the symptomatology reported by the Veteran was not consistent with the examiner's finding that the pre-accident headaches were well controlled. The Court also noted that the examiner failed to provide a rationale for bare conclusions that symptoms prior to the 2003 motor vehicle accident were fairly well controlled and that symptoms after that accident were out of control. The 2012 VA examiner did not address the 2003 VA examination report in her 2014 examination report. Similarly, the November 2015 VA examiner did not address the 2003 VA examination in rendering an opinion on the nature of the Veteran's headaches. Based on the above, all headache symptomatology is attributable to the service-connected cephalgia. Social Security Administration records show that the agency awarded disability benefits effective September 2003. The administrative law judge determined that the Veteran had the following severe impairments: neck pain, back pain, headaches, and memory impairment. VA treatment records reflect that in September 2009 the Veteran had extreme photophobia. In November 2011, a VA doctor indicated that the Veteran was quite disabled from his headaches in addition to his problems with cognition. The February 2012 VA examiner noted that the Veteran had prostrating attacks of headaches more than once a month. The examiner indicated that the cervical spine disorder did not affect his ability to work. The November 2014 VA examination report shows that the Veteran reported having a severe headache once a week and less severe headaches every day. An October 2015 vocational evaluation report reflects that a private vocational rehabilitation evaluator opined that the Veteran has a severe economic inadaptability due to his headaches. October 2015 VA examination reports show that the Veteran has no functional impairment affecting his ability to work from his service-connected skin disability and left fingers disability. An October 2015 VA cervical spine examination report reveals that his cervical spine disability would limit employment requiring frequent or prolonged turning. The examiner noted that the cervical spine disability would not limit light sedentary employment and light physical employment. An October 2015 VA headaches examination report reflects that the headache disorder affected the Veteran's ability to work in that he had to avoid complex detailed tasks that require excessive concentration. The examiner noted that the headaches would not limit light sedentary employment and light physical employment. The examiner added that he is currently able to engage in photography as a hobby. As to the severity of the headaches, the examiner noted the Veteran's recent attendance at a demolition derby and other grandstand events is inconsistent with the disabling type of headache he is reporting. VA treatment records show that a psychologist noted that the Veteran could not work because of his headache disorder. Although the Veteran had a non-paid position in 2005 and has more recently been able to sell his photographs and cover the costs of his supplies, the Board finds that his employment since March 14, 2015, has been no more than marginal employment. The evidence shows that the non-paid position was essentially an internship. There is no indication that he earns a profit from his photography hobby that would exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. In light of the conflicting evidence on the severity of the headache disorder and the determination by the Social Security Administration that the Veteran was disabled in part due to a cervical spine disability and a headache disorder, the evidence is in equipoise as to whether the Veteran's service-connected cephalgia, chronic cervical muscle strain, hyperextension injuries of the left thumb and ring finger, and chronic atopic dermatitis of the right lower leg have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since March 14, 2005. Accordingly, entitlement to a total rating based on individual unemployability is in order. Entitlement to special monthly compensation based on housebound status from since June 14, 2016 Special monthly compensation (SMC) is available when, "as the result of a service-connected disability," a Veteran suffers additional hardships above and beyond those contemplated by the rating schedule. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011); see also 38 U.S.C.A. § 1114(k)-(s). A Veteran is presumed to be seeking the maximum benefit allowed by law or regulation, and such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (requiring the Board to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Moreover, VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Therefore, a claim for increased disability compensation may include the "inferred issue" of entitlement to SMC even where the Veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010) (requiring VA to assess all of the claimant's disabilities to determine whether entitlement to SMC under 38 U.S.C.A. § 1114(s) is established whenever a Veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for SMC). A common scenario in which this arises is if the existing record or the Board's actions (e.g., granting an increased rating for a service-connected disability) result in the implication of 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i). TDIU prior to June 14, 2016, based on his service-connected disabilities other than the service-connected psychiatric disorder has been granted. A 70 percent disability for the service-connected psychiatric disorder since June 14, 2016, has been granted. Accordingly, special monthly compensation at the housebound rate under 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350(i) is warranted since June 14, 2016. ORDER An initial 70 percent disability rating, but not higher, since June 14, 2016, is granted for an unspecified depressive disorder, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total rating based on individual unemployability since March 14, 2005, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to special monthly compensation based on housebound status from June 14, 2016, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs