Citation Nr: 21004952 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-28 908 DATE: January 28, 2021 ORDER Entitlement to a total disability rating based upon unemployability (TDIU) is granted effective October 15, 2018. Entitlement to special monthly compensation (SMC) based on housebound is denied. FINDINGS OF FACT 1. The probative evidence of record establishes that the Veteran stopped working October 15, 2018, but no earlier. 2. The probative evidence of record does not establish that the Veteran has a single disability rated at 100 percent disabling or is permanently housebound by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. Effective October 15, 2018, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. 2. The criteria for special monthly compensation at the housebound rate have not been met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. §§ 3.102, 3.350, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marines from February 1988 to March 1993. In July 2019, the Veteran and his wife testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing is associated with the claims file. The Veteran’s claim was most recently before the Board of Veterans’ Appeals (Board) in November 2019 wherein the claim for an earlier effective date for TDIU was remanded for additional development. In addition, the claims for entitlement to service connection for residuals of eye trauma and gastroesophageal reflux disease (GERD), to include reopening, were remanded for the issuance of a statement of the case (SOC). These actions have been completed. As explained in the November 2019 Board Remand, the Veteran testified in May 2019 that his knees, in addition to other disabilities, prevented him from working. Therefore, entitlement to a TDIU was raised by the record in the context of the increased rating before the Board. As such, the Board took jurisdiction of the issue. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). Further, because VA has a duty to maximize benefits, entitlement to SMC under 38 U.S.C. § 1114 was also raised by the record. See 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”). The Board notes that the Veteran filed a separate claim wherein the Veteran contended that he should be awarded a 100 percent rating for PTSD, entitlement to a TDIU, and dependent’s educational assistance (DEA) benefits, each effective February 16, 1999. This claim was denied in a June 2020 rating decision but does not impact the claim on appeal with the Board. TDIU 1. Entitlement to a TDIU effective October 15, 2018 Through a June 2019 rating decision, the Veteran was granted a TDIU effective November 17, 2018. Because the appeal period began with the Veteran’s increased rating claim for his knees in April 2012, and TDIU was not granted for the full period, the period of time prior to November 2018 remained on appeal. TDIU ratings for compensation may be assigned, where the schedular rating is less than total (100 percent), 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. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, 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). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Factors to be considered in determining whether unemployability exists are the Veteran’s education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran’s age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran met the schedular requirement for a TDIU in August 2000. However, the evidence continued to show that the Veteran was employed until November 16, 2018. Given that the Veteran was employed, TDIU was granted effective November 17, 2018 through the June 2019 rating decision. As explained in the November 2019 Board Remand, the evidence appeared to establish that the Veteran stopped full-time employment on October 15, 2018. The Veteran testified under oath that he stopped working on that date and two separate statements of record also provide that he stopped working in mid-October 2018. However, the Board noted that the Veteran’s employer provided a statement that the Veteran resigned November 16, 2018 and because the Veteran’s last pay payment was less than $100, the Board remanded the claim to determine if the Veteran was underemployed at that time. The Veteran submitted a statement dated July 23, 2020 in response to a request for additional information where he stated as follows: “…My last recorded day of work was October 15, 2018. I, in no way, dispute that date.” The Veteran does not address whether he was marginally or underemployed prior to that date. See VA 21-4138 Statement in Support of Claim, received July 27, 2020. Given all of the above, the Board finds that entitlement to a TDIU is granted effective October 15, 2018. Prior to that date, the Veteran was employed and there is no evidence that he was marginally or underemployed prior to that date. Special Monthly Compensation 2. Entitlement to SMC based on housebound Turning to whether the Veteran may be entitled to SMC, 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. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). When considering whether the Veteran has a single disability rated as 100 percent disabling, a total rating based on individual unemployability due to a single service-connected disability will qualify. Therefore, the question is whether any of the Veteran’s individual service-connected disabilities cause him, on their own, to be unemployable. The June 2019 rating decision did not explicitly address whether a single disability warranted a TDIU on its own. As of October 15, 2018, the Veteran had the following service-connected disabilities: bilateral knee disabilities, jointly rated at 80 percent disabling (including a bilateral factor of 7.3 percent); posttraumatic stress disorder (PTSD), rated at 70 percent disabling; migraines, rated at 50 percent disabling; and folliculitis and tinnitus each rated at 10 percent disabling. Thus, the Veteran’s knees and PTSD could be the basis for a TDIU on their own because both of the disabilities are independently rated at 60 percent. 38 C.F.R. § 4.16 (a). The Veteran attended a VA examination for his PTSD in December 2018. The examiner did not assess functional limitations for the Veteran’s PTSD, but did find that the PTSD would result in reduced reliability and productivity equivalent with a 50 percent rating. The Board finds that the Veteran’s PTSD would result in difficulty staying on task and interacting with others, but on its own, would not impact the Veteran’s ability to perform physical work, unskilled work, such as a janitor. As for the Veteran’s bilateral knees, the Veteran would have difficulty standing, walking, and lifting/carrying items. But it would not preclude the Veteran from performing non-physical work, such as clerical work. The Veteran was employed as an engineering technician and the Board infers that the Veteran had some computer training during that employment. Given this, neither disability would preclude employment. Further, the Board does not find that the Veteran is permanently housebound by reason of his service-connected disability or disabilities. The probative evidence does not indicate that the Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Given this, the criteria for SMC at the housebound rate are not met. Thus, the claim is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.