Citation Nr: 21072123 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-20 339 DATE: December 2, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due solely to the service-connected dysthymic disorder and pain disorder is granted. Special monthly compensation (SMC) under 38 U.S.C. § 1114(s) based on the statutory housebound rate is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due solely to her service-connected dysthymic disorder and pain disorder for the entire period covered by the claim. 2. The Veteran's TDIU is granted solely due to the Veteran's service-connected dysthymic disorder and pain disorder and her service-connected irritable bladder with urinary incontinence is independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for a TDIU due solely to service-connected dysthymic disorder and pain disorder are met for the period covered by this claim. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (a). 2. The criteria for the assignment of SMC at the statutory housebound rate are 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 with the United States Air Force from October 1985 to October 1989 and from February 1991 to March 1991. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to TDIU and denied entitlement to SMC based on the housebound rate. The Veteran's notice of disagreement (NOD) was received in July 2016. The RO issued the statement of the case (SOC) in March 2018, and the Veteran's VA Form 9, substantive appeal was received in April 2018. In October 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. The transcript from the hearing has not yet been associated with the file, as the appeal is being granted under the Board's "One Touch" program. As the instant decision results in a complete grant of the benefit sought, no prejudice inures to the Veteran from proceeding without the hearing transcript. As part of her contentions for entitlement to SMC based on statutory housebound, the Veteran has argued that there was clear and unmistakable error (CUE) in the January 2005 rating decision and thus she should be entitled to an effective date of April 26, 2004 for SMC based on statutory housebound. See, e.g. June 2016 NOD and December 2018 correspondence. However, the Board does not currently have jurisdiction to address a CUE claim in conjunction with the current appeal. Moreover, the Veteran has consistently stated that the grant of SMC based on statutory housebound satisfies her current appeal. 1. Entitlement to a TDIU due solely to service-connected dysthymic disorder and pain disorder. The Veteran asserts that her service-connected dysthymic disorder and pain disorder, which is currently rated as 70 percent disabling, prevents her from being able to maintain substantial employment. The question for the Board is whether the service-connected dysthymic disorder and pain disorder, either alone or when combined with other service-connected disabilities, causes the Veteran to be unemployable. The Board concludes that the service-connected dysthymic disorder and pain disorder alone causes the Veteran to be unable to maintain gainful employment. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person 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. §§ 3.340, 3.341, 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. In determining unemployability, consideration should be given to the veteran's prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342 (2000). Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3. As noted, the Veteran's service-connected dysthymic disorder and pain disorder is currently rated as 70 percent disabling. Additionally, the Veteran's other currently service-connected disabilities are irritable bladder with urinary incontinence, rated as 60 percent disabling; decrease in temporomandibular joint (TMJ) inter-incisal opening, rated as 40 percent disabling; numbness in the upper and lower lip, rated as 30 percent disabling; sinusitis, rated as 30 percent disabling; temporomandibular articulation limited range of motion of lateral excursion, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; right hip scar, rated as 10 percent disabling; tic douloureux, rated as 10 percent disabling; and ingrown toenails, rated as noncompensable. As the Veteran has at least one disability rated as 60 percent disabling, and a combined rating of 100 percent, she meets the threshold percentage requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). Accordingly, the only remaining question is whether the Veteran's service-connected disabilities preclude substantially gainful employment consistent with her education and work history. In this case, the Veteran completed a bachelor's degree in social work. See September 2015 VA treatment note. The evidence shows that the Veteran has been unemployed since 2010. See, e.g. December 2010 OPM letter. Prior to her unemployment, the Veteran worked as a Veterans Service Representative and Rating Veteran Representative Supervisor. See id. The Veteran reported missing 90 days due to illness in the last 9 years of employment. See January 2016 VA Form 21-8940. The evidence of record indicates that the Veteran received a medical retirement from her job due to depression. See December 2010 OPM letter. The Veteran has also been receiving Social Security Administration (SSA) disability benefits since 2014. See November 2015 SSA Decision. In July 2010, a VA nurse practitioner specializing in psychiatry completed a Certification of Health Care Provider for Employee's Serious Health Condition. The nurse practitioner stated that the Veteran was unable to handle stress in all functions of her employment and suffered from anxiety, depression, disturbed sleep, concentration difficulties, racing thoughts, mood swings, irritability and difficulty handling and type of stress. In December 2014, the Veteran underwent a psychological evaluation and presented with reports of depression, dysthymic disorder and anxiety for which she was currently taking multiple medications. She reported lack of motivation, low energy, social isolation, memory impairment and marked nervousness. In January 2015 the Veteran underwent another psychological evaluation. She presented with a history of facial nerve damage, physical problems with severe pain, depression and anxiety. A mental status exam revealed the Veteran's mood was depressed, her affect was sad, she cried throughout the evaluation, her memory and concentration were fair to poor, and her delayed recall was poor. In a June 2015 follow-up statement, the same examiner opined that the Veteran could not complete complex instructions due to memory and concentration deficits, had moderate social limitations, was seriously limited in her ability to cope with normal work stress, was unable to meet competitive standards in performing her activities of daily living, would have occasional episodes of decompensation and would miss more than 15 days per month due to psychologically based symptoms. The Veteran underwent a VA examination for her dysthymic disorder and pain disorder in January 2019. During the examination, the Veteran reported that she experiences marital issues, self-isolates due to her psychiatric symptoms, hasn't made any friends in past 5 years and that her only contact with friends is by phone a couple times a month. The examiner found that the Veteran displayed symptoms such as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, neglect of personal appearance and hygiene, irritability, problems with attention and concentration, crying spells. Based on these symptoms, the examiner opined that the Veteran presented with occupational and social impairment with reduced reliability and productivity. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In making this determination, the findings, comments and opinions of the private psychologists and VA examiner have appropriately been considered as pertinent evidence, along with the Veteran's competent assertions, in determining whether she is able to perform the acts required for substantially gainful employment. Based on the foregoing, the overall evidence of record indicates that the Veteran is unable to maintain gainful employment due solely to her service-connected dysthymic disorder and pain disorder. Specifically, the Veteran's depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, neglect of personal appearance and hygiene, irritability, problems with attention and concentration, self-isolation and crying spells make it extremely difficult for her to maintain substantially gainful employment. Accordingly, the evidence is at least evenly balanced as to whether the Veteran is precluded from obtaining and maintaining substantially gainful employment in occupations related to her education, training, and work experience by her service-connected dysthymic disorder and pain disorder. Resolving all reasonable doubt in favor of the Veteran, entitlement to TDIU based solely on service-connected dysthymic disorder and pain disorder is warranted. 2. Entitlement to SMC under 38 U.S.C. § 1114(s) based on the statutory housebound rate. SMC at the housebound rate is payable by law where the veteran has a single service-connected disability rated at 100 percent and has additional service-connected disabilities independently ratable at 60 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. Here, the Veteran is entitled to a TDIU for her dysthymic disorder and pain disorder alone. Accordingly, the TDIU is considered the equivalent of a single 100 percent rating because it is based on a single service-connected disability. In addition, the Veteran has an additional service-connected disability independently ratable at 60 percent disabling throughout the appeal. For SMC purposes, a TDIU predicated on one service-connected disability satisfies the requirement of a "single service-connected disability rated as total." Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Accordingly, she is entitled to SMC at the housebound rate from the effective date of the TDIU assigned by the AOJ. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.