Citation Nr: 21076825 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-03 929 DATE: December 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) based solely on the Veteran's service-connected psychiatric disorder is granted, beginning July 14, 2018. Entitlement to special monthly compensation (SMC) at the statutory housebound rate is granted, beginning July 14, 2018. FINDINGS OF FACT 1. The Veteran was last gainfully employed on July 13, 2018. 2. Beginning July 14, 2018, the Veteran's service-connected psychiatric disability alone results in an inability to secure or follow a substantially gainful occupation. 3. Beginning July 14, 2018, as a result of the Board's decision herein, the Veteran has a single service-connected disability rated as total, and additional service-connected disabilities independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU, effective July 14, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 2. The criteria for special monthly compensation (SMC) at the housebound rate, effective July 14, 2018, have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service with the United States Navy; the exact dates of the service are the subject of some uncertainty, as the Veteran's DD-214s reflect service from February 1996 to November 1999, and from June 1998 to April 2011. The Department of Veterans Affairs (VA) reflects service from February 1996 to November 1999, and from March 2002 to April 2011, with reserve service in between. Regardless of his exact service dates, there is no question regarding the appellant's status as a veteran. These matters come before the Board of Veterans' Appeals (Board) on appeal of October and November 2017 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in September 2019. In January and November 2020, the Board remanded the claims for further development. The Board finds that there has been substantial compliance with its most recent remand directives in November 2020. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU In an October 2019 statement, the Veteran's attorney representative stated that the Veteran's major depressive disorder alone precludes him for engaging in any substantially gainful employment. 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 or her 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. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. First, records show that the Veteran's last day of employment was July 13, 2018. Though the Veteran had contended in his formal application and at his hearing that he last worked in February 2018, objective records from the Veteran's former employer reflect that the Veteran was last employed on July 13, 2018. The Board finds the response from the Veteran's former employer to be more probative as to his final date of employment than the Veteran's report. Second, in an October 2019 private opinion, Dr. J. G., a private psychologist, opined that the Veteran's psychiatric disorder substantially impaired important aspects relating to seeking out, attaining and retaining competitive employment. The Veteran's attorney has argued that Dr. J.G.'s report shows that the Veteran's psychiatric disorder alone precludes his ability to secure and follow a substantially gainful occupation. The Board agrees. While there are opinions to the contrary, such opinions would only bring the evidence to the point of equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that his psychiatric disorder alone precludes his ability to secure or follow a substantially gainful occupation. Having established those facts, the Board grants entitlement to a TDIU for the Veteran's psychiatric disorder alone effective July 14, 2018. This is the day following the Veteran's last date of full time employment. Further, the Veteran's psychiatric disorder is rated at 70 percent during this period, meeting the schedular criteria for a grant of a TDIU based on a single disability. Other than stating that his employment ended in February, rather than July, of 2018, neither the Veteran nor his attorney have argued that his previous employment was marginal or in a protected environment. The Board can find no evidence that the Veteran's employment prior to July 14, 2018 was anything less than gainful, and so a TDIU prior to that point is not warranted. In summary, the Board finds that the Veteran's psychiatric disorder alone has precluded his ability to secure or follow a substantially gainful occupation. Accordingly, the Board grants a TDIU for this single disability effective July 14, 2018, the date following his last day of gainful employment. 2. Entitlement to SMC at the housebound rate SMC at the housebound rate is payable when a veteran has a single service-connected disability rated 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)(1). For the purposes of this determination, a TDIU based on a single disability may count as the 100 percent disability. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that a grant of TDIU based on a single disability constitutes a totally rated service-connected disability for purposes of § 1114(s)). Here, the Board has granted a TDIU based on the Veteran's psychiatric disorder alone, effective July 14, 2018. At that point, the Veteran had a number of other service-connected disabilities, and their combined disability rating (excepting his psychiatric disorder) is greater than 60 percent. Accordingly, SMC at the statutory housebound rate is also granted, effective July 14, 2018. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.