Citation Nr: 21029583 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 11-19 871 DATE: May 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from March 24, 2007 to August 25, 2013 is granted. The appeal regarding entitlement to TDIU from August 26, 2013 has been rendered moot and is dismissed. Entitlement to special monthly compensation (SMC) at the housebound rate from May 21, 2010 to August 11, 2013 is granted. Basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. chapter 35 from March 24, 2007 to August 25, 2013 is granted. REMANDED Entitlement to an initial disability rating greater than 10 percent for degenerative disc disease (DDD) of the lumbar spine prior to November 2, 2011, and greater than 20 percent thereafter, is remanded. Entitlement to a separate disability rating for right lower extremity radiculopathy prior to July 18, 2016, and greater than 10 percent thereafter, is remanded. Entitlement to SMC housebound from March 24, 2007 to May 20, 2013 and from August 12, 2013 to August 25, 2013 is remanded. FINDINGS OF FACT 1. From March 24, 2007 to August 25, 2013, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected major depressive disorder alone. 2. From August 26, 2013, the Veteran was in receipt of a 100 percent schedular evaluation for his service-connected major depressive disorder as well as special monthly compensation (SMC) based on statutory housebound criteria. 3. Based on the Board's finding that TDIU is warranted based on major depressive disorder alone from March 24, 2007 to August 25, 2013, the Veteran had a single, service-connected disability rated at 100 percent plus additional service-connected disabilities having a combined rating of at least 60 percent from May 21, 2010 to August 11, 2013. 4. Based on the Board's finding that TDIU is warranted based on major depressive disorder alone from March 24, 2007 to August 25, 2013, the Veteran is permanently and total disabled from March 24, 2007 to August 25, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU from March 24, 2007 to August 25, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a). 2. The assignment of a 100 percent schedular evaluation for major depressive disorder and SMC based on statutory housebound criteria from August 26, 2013 renders the TDIU appeal from August 26, 2013 moot. 38 C.F.R. § 4.16(a). 3. The criteria for SMC at the housebound rate from May 21, 2010 to August 11, 2013 have been met. 38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. §§ 3.102, 3.350(i). 4. The criteria for basic eligibility to DEA under 38 U.S.C. chapter 35 from March 24, 2007 to August 25, 2013 have been met. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 2002 to March 2007. In December 2017, the Board remanded the issues of entitlement to restoration of a 30 percent rating for a neck disability and a 10 percent rating for cluster headaches for issues of a statement of the case (SOC). These issues were adjudicated in a March 2019 SOC, and the Veteran was notified but did not file a timely substantive appeal in response. As a result, these issues were not returned or certified to the Board for appellate review. In May 2016 and December 2017, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent prior to November 2, 2011 and in excess of 20 percent thereafter for lumbar spine disability for additional evidentiary development. This issue has been returned to the Board for appellate review. In Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when the record raises such claim. In August 2017, the Veteran reported he was unable to work since 2012 in part because of his back and neurological complications associated with his back. See, e.g., August 2017 VA treatment record. Thus, the issue of TDIU is reasonably raised by the record from March 24, 2007, or the beginning of the rating period for a lumbar spine disability. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 4.16(a). Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether a Veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 1. March 24, 2007 to August 25, 2013 Here, the Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis from March 24, 2007 to August 25, 2013. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. As explained below, the medical and lay evidence of record show that the Veteran's service-connected major depressive disorder alone prevented him from obtaining substantially gainful employment from at least from March 24, 2007 to August 25, 2013. The Veteran has a high school education with some college courses taken. See, e.g., July 2012 VA Form 21-8940. While the Veteran worked sporadically from 2007 to 2012, he was frequently fired and had numerous incidents with co-workers. The Veteran also had at least 50 suicide attempts or ideation with intent through March 2010. See March 2010 VA treatment record. Further, he had five psychiatric hospitalizations between 2007 and May 2010, all secondary to suicidal ideation. See September 2010 VA examination report. Prior to August 2013, the Veteran experienced problems with co-workers, irritability, persistent delusions or hallucinations, and was in persistent danger of hurting others. See July 2016 VA examination report. Throughout the appeal period, the Veteran has experienced severe interpersonal conflict. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical clinician's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran's mental limitations would cause concentration lapses, hinder his ability to effectively complete tasks, cause frequent absences and work disruptions, and lead to severe interpersonal conflicts. Therefore, the Board finds that the Veteran's service-connected depression prevents him from obtaining and maintaining substantially gainful employment. Accordingly, the criteria for TDIU from March 24, 2007 to August 25, 2013 have been met, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). 2. From August 26, 2013 In a March 2019 rating decision, the AOJ found the Veteran was entitled to a 100 percent schedular rating for major depressive disorder from August 26, 2013. He was also awarded special monthly compensation (SMC) based on statutory housebound criteria from August 26, 2013 in the same rating decision. The Court has recognized that a 100 percent rating under the rating schedule indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). The Veteran was rated at a schedular 100 percent for major depressive disorder and was in receipt of SMC based on statutory housebound criteria from August 26, 2013. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Thus, he was in receipt of the maximum benefit allowable from August 26, 2013 and the issue of TDIU from that date is moot and dismissed as a matter of law. SMC SMC at the housebound rate is payable where a 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). Pursuant to the Order above, the Board has awarded TDIU based on major depressive disorder alone from March 24, 2007 to August 25, 2013, and the Veteran had additional service-connected disabilities independently ratable at a combined rating of more than 60 percent from May 21, 2010 to August 11, 2013. Accordingly, as both elements of entitlement to SMC at the (s) rate have been shown, the Board finds entitlement to SMC at the statutory housebound (s) rate is granted from May 21, 2010 to August 11, 2013. DEA Because the Board has determined that the Veteran's service-connected major depressive disorder alone renders him permanently and total disabled from March 24, 2007 to August 25, 2013, basic eligibility to DEA is warranted. 38 U.S.C. Ch. 35; 38 C.F.R. § 3.807. REASONS FOR REMAND 1. Back and Radiculopathy The evidentiary record is incomplete. The Veteran applied for disability benefits administered under the Social Security Act (SSA). See February 2008 letter. Further, the record suggests that the Veteran receives SSA benefits. See August 2017 SSA letter; June 2014 VA treatment record. In August 2017, the Veteran reported he was unable to work since 2012 in part because of his back and neurological complications associated with his back. See, e.g., August 2017 VA treatment record. VA has not obtained or attempted to obtain documents from SSA that may relate to the Veteran's lower back and radiculopathy disabilities. Therefore, the Board finds there may be outstanding and relevant SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Thus, a remand is required to allow VA to request and obtain these records. 2. SMC Housebound from March 24, 2007 to May 20, 2010 and from August 12, 2013 to August 25, 2013 The back and radiculopathy increased rating issues for the entire appeal period are being remanded for further development. As increases in the schedular ratings of either disability could surpass the 60 percent threshold for SMC at the housebound rate from March 24, 2007 to May 20, 2010 or from August 12, 2013 to August 25, 2013, the issues are inextricably intertwined. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: 1. Obtain any outstanding SSA records. All obtained records should be associated with the evidentiary record to the extent possible. 2. After completing directive #1 above, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. MAX P. SALAZAR, JR. Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.