Citation Nr: 21010373 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-11 233A DATE: February 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the law and regulations governing payment of monetary benefits. Entitlement to special monthly compensation (SMC) based on statutory housebound status is granted, subject to the law and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. The traumatic brain injury (TBI) residuals of major depressive disorder with traumatic brain injury (previously rated as traumatic brain injury) and migraine including migraine variants associated with major depressive disorder with traumatic brain injury (previously rated as traumatic brain injury) prevent the Veteran from securing and following substantially gainful employment. 2. Based on this decision, the Veteran is in receipt of a TDIU based on the service connected disabilities of major depressive disorder with traumatic brain injury and migraine including migraine variants associated with major depressive disorder with traumatic brain injury, which are considered to be a single disability based on a shared etiology or single accident of traumatic brain injury, and other service-connected disabilities that are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. CONCLUSIONS OF LAW 1. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 2. The criteria for entitlement to special monthly compensation based on statutory housebound status 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 from September 2006 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision. The Board remanded this matter in October 2018. 1. Entitlement to a TDIU. An October 2018 order of the Board determined that the issue of entitlement to a TDIU had been raised by a May 2014 filing in which the Veteran alleged an inability to maintain gainful employment as a result of her service-connected traumatic brain injury (TBI). Following the Board’s remand of the issue, TDIU entitlement was denied by supplemental statements of the case of August 2020 and September 2020. In general, a TDIU may be assigned initially by the Board if the schedular rating is less than total and the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A request for a total disability rating based on individual unemployability due to service-connected disabilities involves an attempt to obtain an appropriate rating for a disability and is part of a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the threshold percentage criteria for TDIU consideration by the Board (schedular TDIU) pursuant to 38 C.F.R. § 4.16(a) are met from June 22, 2011. From June 22, 2011, the Veteran has had a combined evaluation for compensation of 70 percent, and at least one disability was rated at 40 or higher, which meets the criteria for eligibility for schedular TDIU consideration. The Veteran’s major depressive disorder with traumatic brain injury (TBI) (previously rated as TBI) has been rated at 40 percent from June 22, 2011, and her disability of migraine including migraine variants associated with major depressive disorder with traumatic brain injury (TBI) (previously rated as traumatic brain injury) has been rated as 50 percent disabling from June 22, 2011. On the basis of a common etiology or single accident of traumatic brain injury, the two rated disabilities may be considered as one disability for the purpose of determining eligibility for a schedular TDIU rating. In January 2019, the Veteran submitted VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in which she stated that one year of college is her highest year of completed education and that she had worked part-time (15-24 hours/week) as a freelance hairstylist from 2014 to the present. In July 2020, the Veteran reported that she was forced to stop working as a self-employed hairstylist in 2019 due to service-connected disability. She stated that she currently worked sporadically for a family member who owns a cleaning service. There she answers phones as an appointment setter and is able to work 10- 15 hours per week at the most on “good days” and is unable to maintain that activity every week. She estimated that, in the last 12 months of employment, she had lost 20 -35 hours per week from work due to service-connected disability. Marginal employment shall not be considered substantially gainful employment. It generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). The Veteran reported on VA Form 21-8940 that her total earned income for the past 12 months was $28,170.50. According to the United States Census Bureau, the weighted average poverty threshold for 2018 for one person under age 65 was $13,064. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The Veteran’s income for that year thus exceeded the poverty threshold. Although the Veteran has had part-time work as a freelance hairdresser, she was unable to maintain that earning activity and became limited to marginal, not substantially gainful, employment of only several hours a week in a protected family arrangement. Marginal employment, such as self-employment or at odd jobs, will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a); see also Moyer v. Derwinski, 2 Vet. App. 289, 295 (1992) applying the definition of “marginal employment” in § 4.17(a), which concerns TDIU pension claims, to TDIU a compensation claim). Marginal employment may be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). A February 2020 VA examination report for headaches determined that the Veteran’s headache condition impacts her ability to work. It was noted that she has been unable to work since January 2019 due to headaches and sleepiness from headache medication. In an August 2020 letter, Dr. G. C., a VA staff psychiatrist, stated his opinion that the Veteran, based on his treatment of her at the VA clinic, is unable to obtain or maintain substantial gainful employment as a result of her TBI, depression, anxiety, and migraine headaches. By an earlier record of December 2019, he documented his detailed findings and opinions as to the degree of occupational impairment caused by the Veteran’s psychiatric disability. His specific findings were that the Veteran had extreme impairment of her ability to interact appropriately with the general public, to understand, remember, and carry out complex instructions, to maintain attention and concentration for extended periods, to complete a normal workday and workweek without interruptions from psychologically based symptoms, to perform at a consistent pace without an unreasonable number and length of rest periods, and to respond to customary work pressures. Dr. G. C. also found marked impairment of the Veteran’s ability to ask simple questions or request assistance, to get along with co-workers or peers, to understand, remember, to carry out simple instructions and repetitive tasks, to perform activities within a schedule, to maintain regular attendance, and to be punctual within customary tolerances, to sustain a routine without special supervision, to make simple work-related decisions, to respond appropriately to supervision, to respond appropriately to changes in the work setting, and to be aware of normal hazards and take appropriate precaution. “Marked” impairment was defined by the doctor as impairment which seriously affects the ability to function. “Extreme” impairment was defined as extreme impairment of ability to function. In the doctor’s opinion, the marked and extreme occupational impairment of the Veteran that he identified could be expected to last 12 months or longer at the severity indicated. The responsibility for making the TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). On the basis of the entire record, the Board determines that the Veteran is not capable of performing the physical and mental acts required by employment as a result of two service-connected disabilities, major depressive disorder and migraine headaches, that may be considered as one disability for purposes of schedular TDIU entitlement. Both rated disabilities are aspects service-connected residuals of traumatic brain injury. A significant factor in the TDIU grant is the well supported opinion of Dr. G. C. that the Veteran’s service-connected psychiatric disorder causes marked and extreme occupational impairments. 2. Entitlement to SMC. In rating residuals of traumatic brain injury, VA must consider the need for special monthly compensation for problems that include, but are not limited to, the need for aid and attendance and being housebound. 38 C.F.R. § 4.124a, DC 8045. The issue of entitlement to SMC is an ancillary benefit that should be addressed by the Board when raised by the claimant or reasonably raised by the record, regardless of whether a formal claim is submitted pursuant to 38 C.F.R. § 3.155. See Payne v. Wilkie, 31 Vet. App. 373, 387 (2019). By its order of October 2018, the Board remanded the issue of entitlement to SMC as being inextricably intertwined with the remanded TDIU claim. Special monthly compensation benefits by reason of being housebound are payable if a veteran has a single permanent disability rated 100 percent disabling, and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, 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 disabilities independently ratable at 60 percent or more must be separate and distinct from the 100-percent service-connected disability and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i)(1). The provision relating to “100 percent plus 60 percent” is commonly referred to as “statutory housebound.” SMC under 38 U.S.C. § 1114(s) need not be limited to a service-connected disability rated under a schedular rating of 100 percent. A TDIU rating based on a single disability may satisfy the statutory requirement of a total rating under 38 C.F.R. § 3.350(i). See Bradley v. Peake, 22 Vet. App. 280 (2008). The order in which disabilities are service connected is not relevant to VA’s determination of a claimant’s eligibility for special monthly compensation under section 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010). As a result of the ratings established by today’s decision, the Veteran will have a TDIU based on the single, service-connected disability of the TBI residuals of major depressive disorder with traumatic brain injury (previously rated as traumatic brain injury) and migraine including migraine variants associated with major depressive disorder with traumatic brain injury (previously rated as traumatic brain injury). Under the Combined Ratings Table, 38 C.F.R. § 4.25, she also has other service-connected disabilities that are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems: cervical strain with intervertebral disc syndrome (30 percent); peripheral vestibular disorder (30 percent); right shoulder impingement syndrome (20 percent); right upper extremity radiculopathy associated with cervical strain with intervertebral disc syndrome (20 percent); and tinnitus (10 percent). The Board determines that the Veteran is entitled to SMC on the basis of a 1) TDIU rating based on the basis of TBI residuals considered as one disability and 2) multiple, separate ratings that involve different anatomical segments or bodily systems and combine to 60 percent or more. 38 C.F.R. § 3.350(i). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven D. Najarian, 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.