Citation Nr: 1807315 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-17 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). 2. Entitlement to special monthly compensation (SMC) at the rate specified at 38 U.S.C.. § 1114(s). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from December 1998 to December 2002 and from June 2005 to June 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for major depression and assigned a 50 percent rating effective July 15, 2011. In a March 2014 rating decision, the Veteran was awarded an earlier effective date of June 9, 2009, the day following his separation from service, for his major depressive disorder. In October 2015, the Board granted and increased rating for major depressive disorder and remanded the issue of TDIU, raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), for further action by the agency of original jurisdiction. This increase was effectuated in a November 2015 rating decision. FINDINGS OF FACT 1. The Veteran's service connected major depressive disorder has rendered him unable to secure or maintain substantially gainful employment. 2. Pursuant to this decision, the Veteran has one service-connected disability rated as total and additional service-connected disability, tinea versicolor, independently ratable at 60 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU based on service connected major depressive disorder have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.16 (2017). 2. The criteria for SMC at the housebound rate have been met. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. TDIU Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability 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)(2017). The Veteran's combined rating for all disabilities is 100 percent for the entire appeals period. The Veteran has met the schedular percentage threshold for a TDIU based on his major depressive disorder alone as this disability is rated 70 percent for the entire appeals period. His disabilities other than major depressive disorder have a combined rating of 70 percent prior to September 26, 2011 and 90 percent thereafter. This raises the possibility of entitlement to additional benefits, such as entitlement to special monthly compensation (SMC) if the Veteran's major depressive disorder alone is found to warrant TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran had a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability or disabilities in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate)); see also 38 U.S.C. § 1114 (s); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) (discussing VA's "well-established" duty to maximize a claimant's benefits). Thus, the question of whether TDIU is warranted for the Veteran's major depressive disorder alone remains on appeal. The question is whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected major depressive disorder. 38 C.F.R. §§ 3.340, 3.341, 4.16. The record shows that the Veteran is unemployed and has not been gainful employed since 2009. In an October 2014 private opinion, Dr. H. H.-G. found that the Veteran was unable to sustain the stress from a competitive work environment and cannot be expected to engage in gainful activity due to his major depressive disorder. She noted that the Veteran would miss work or leave early from the workplace 3 or more days per month due to mental problems. He would have trouble with concentration and would not be able to stay focused to complete simple repetitive tasks, more than 3 days per month. He would respond inappropriately to the normal pressure and constructive criticism of a job by responding in an angry but not violent manner, more than once a month. Additionally, his score of 50 on the on the Global Assessment of Functioning (GAF) Scale was consistent with someone with suicidal ideation, few friends, and the inability to keep a job. Based on the above, the Board finds that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected major depressive disorder. Thus, TDIU is granted. III. SMC at the 38 U.S.C. § 1114(s) rate Under 38 U.S.C. § 1114(s), if a veteran has a service connected disability rated as total, and has additional service connected disability or disabilities independently ratable at 60 percent or more the monthly compensation will be at the rate specified in this subsection. The TDIU grant is based solely on the Veteran's psychiatric disability. Service connection has already been established for tinea versicolor rated at 60 percent. The record does not show that the tinea versicolor is other than independently ratable at 60 percent. Hence the criteria for SMC at the rate specified at § 1114(s) have been met and the appeal must be granted. ORDER TDIU is granted, subject to the provisions for disbursement of monetary benefits.. SMC at the 38 U.S.C. § 1114(s) rate is granted, subject to the provisions for disbursement of monetary benefits. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs