Citation Nr: 21004160 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-28 880 DATE: January 26, 2021 ORDER Entitlement to an effective date earlier than February 2, 2011, for total disability based on individual unemployability (TDIU) is denied. Entitlement to an effective date earlier than February 2, 2011, for special monthly compensation (SMC) at the housebound rate is denied. FINDINGS OF FACT 1. The Veteran engaged in a substantially gainful occupation until February 2, 2011. 2. Prior to February 2, 2011, the Veteran did not have one service-connected condition rated as totally disabled with other service-connected conditions rated as 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than February 2, 2011, for TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(a). 2. The criteria for entitlement to an effective date earlier than February 2, 2011, for SMC at the housebound rate are not met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1996 to March 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA)Regional Office (RO) in Montgomery, Alabama. These claims most recently were remanded by the Board in a September 2020 decision. The complex procedural history with which these claims are intertwined thoroughly was explained in that decision and herein is incorporated by reference. In pertinent part, the Board could not adjudicate these claims until VA assigned the Veteran initial ratings for his service-connected PTSD and pseudoseizures from February 2, 2007, to December 14, 2010. In an October 2020 rating decision, VA extended the Veteran’s current ratings for those conditions (70 percent and 20 percent, respectively) back to February 2, 2007. In the October 2020 Supplemental Statement of the Case (SSOC), VA denied earlier effective dates for the claims now before the Board. With VA having complied with the prior remand directives, the Board now may adjudicate the merits. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A finding of total disability is appropriate when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15, 4.16. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34–35 (1994). Where the schedular rating is less than total, a total disability rating 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, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. Marginal employment, however, is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). The record shows that, from February 2, 2007 (the Veteran’s new effective date for PTSD and pseudoseizures), to February 2, 2011, there was no period where the Veteran was not engaged in a substantially gainful occupation. On a March 2012 VA Form 21-8940, the Veteran listed his relevant employment history. From October 2003 to September 2007, the Veteran worked full time in a Warehouse for Advantage Logistics, earning $2,400 per month. The Veteran alleges to have lost eight months of employment from his PTSD during those roughly four years. From February 14, 2009, to February 2, 2011, the Veteran worked full time as a Manager at Walmart, earning $1,350 per month. The Veteran alleges having missed twenty-five days of work in those two years. Lastly, the Veteran worked, on a part-time basis, as a sales associate at Lowe’s from March 18, 2011, to May 20, 2011, earning $700 per month and missing six days of work. In an August 2018 decision, the Board determined that the earliest point at which the Veteran was not engaged in a substantially gainful occupation was February 2, 2011—the date at which his employment with Walmart ended. It found that, although employment with Lowe’s extended beyond that date, the record reflected that he worked part time, earned only $700 per month, and lost six days of work due to his PTSD and pseudoseizures. The Board determined that this did not amount to substantially gainful activity. The Board’s previous factual findings are binding in the instant matter. See 38 C.F.R. § 20.1303 (“previously issued Board decisions will be considered binding only with regard to the specific case decided.”). Because the Board previously found that the Veteran was engaged in a substantially gainful occupation until February 2, 2011, the Board now cannot grant an earlier effective date. Thus, the Veteran’s appeal on this issue is denied. See 38 C.F.R. § 4.16(a). SMC VA has a well-established duty to maximize a claimant’s benefits. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim). SMC is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The United States Court of Appeals for Veterans Claims (Court) has held that, for purposes of satisfying the requirements of 38 U.S.C. § 1114(s), a total rating based on TDIU due to service-connected disabilities may be considered a total rating if it is based on a single, service-connected disability, and any disabilities that do not form the basis for the TDIU may satisfy the requirement for additional service-connected disabilities independently ratable at 60 percent or more under 38 U.S.C. § 1114(s). Bradley, 22 Vet. App.at 291–93. The Court also has held that, if a Veteran is awarded TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of TDIU, the order of the awards is not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and, thus, is entitled to a TDIU rating based on that condition alone. Buie, 24 Vet. App. at 250. The Veteran’s award of SMC at the housebound rate was predicated on the fact that his TDIU award was based solely on his service-connected PTSD and because he had other service-connected conditions that otherwise received a combined rating of 60 percent or more. See May 19, 2017, Board Decision at 18–19. Because the Board herein has found that an earlier effective date for TDIU is not warranted—which was based solely on the Veteran’s PTSD—it legally flows that an earlier effective date for the award of SMC at the housebound rate also cannot be awarded. Thus, the Veteran’s appeal on this issue is denied. See 38 U.S.C. § 1114(s); Buie, 24 Vet. App. at 250; Bradley, 22 Vet. App.at 291–93; 38 C.F.R. § 3.350(i). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate 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.