Citation Nr: 21039873 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 08-32 510 DATE: July 1, 2021 ORDER Effective September 8, 2011, a total disability rating due to individual unemployability (TDIU) is granted. Effective November 21, 2014, special monthly compensation (SMC) at the housebound level is granted. FINDINGS OF FACT 1. The Veteran's headaches have caused unemployability starting September 8, 2011. 2. His headaches are the basis of a TDIU. Starting from November 21, 2014, his other service-connected disabilities combine to more than 60 percent. CONCLUSIONS OF LAW 1. The criteria are met for a TDIU effective from September 8, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16. 2. The criteria are met for SMC at the housebound level effective from November 21, 2014. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to October 1990. This appeal is from a February 2007 rating decision. In November 2020, the Board remanded this issue to give the Veteran an opportunity to authorize VA to obtain private records. He did not respond to those efforts, and the Board finds that there has been substantial compliance with the remand directives. 1. Effective September 8, 2011, a TDIU is granted. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). As a threshold matter, the Board observes that the Veteran has never filed a formal claim for a TDIU. Rather, this claim was inferred by the Board in June 2016, during the pendency of his claim for an increased rating for headaches, which was filed in February 2007. Accordingly, his claim for TDIU has been pending since then. The Veteran meets the eligibility requirements for a TDIU starting from September 8, 2011, when his combined rating is 70 percent. At that time, his migraines were rated as 50 percent disabling. For the period from February 2007 to September 8, 2011, his combined rating was 60 percent, based on multiple disabilities, which does not meet the eligibility requirements. The Board will first address the more recent period, where he meets the eligibility requirements. The record shows the Veteran obtained a college degree in marketing and business during the pendency of this claim, through VA's vocational rehabilitation program, as he was determined to have a serious employment handicap in July 2010 due to his service-connected disability, nonservice-connected disabilities, age, and criminal history. He was attending school in September 2011, having started in January 2011. He completed his studies in July 2016. The program he attended was tailored for disabled veterans, and he received caseworker support through the VA. At times during his enrollment, he worked part-time through the rehabilitation program as a peer advisor to other disabled students. The Board notes that, while this schedule would suggest the capability of participating in gainful employment, the Veteran was also provided support from the VA and accommodations from his program of study. This resulted in an equivalent to "a protected environment," which, if present in an employment situation, would be considered marginal. The Board does not find that his school attendance and vocational rehabilitation participation precludes a finding of unemployability. Indeed, although he succeeded with obtaining his degree, with support, he did not achieve rehabilitation, and has not been gainfully employed since completion of vocational rehabilitation. In February 2018, a vocational rehabilitation memo noted that the Veteran had received his bachelor's degree but had not completed the other services that were outlined in his plan. He was informed that he was considered rehabilitated and his record was closed. A follow up report, in February 2019, noted the Veteran had obtained some form of employment on his own (that is, without use of the rehabilitation services) after January 2017. However, that employment had not been maintained long enough to actually achieve rehabilitation. The report continued that evidence was received that he was earning wages, but not what they were or where they were from. The Board notes the record strongly suggests that this employment was as a pizza delivery man: an August 2019 VA treatment record notes that he lost his job approximately six months prior because he did not deliver a pizza; and, a March 2020 VA examination report notes he delivered pizza for approximately 8 months. This would mean that he worked from approximately June 2018 to February 2019. However, although the record does not contain wage information, the Board finds it highly unlikely that this employment would be substantial and gainful. Doubt is resolved in his favor. There is no other evidence of any other work after September 8, 2011. Accordingly, the record does not show he was working in substantial gainful employment, or equivalent thereto, in the period starting from September 8, 2011. The remaining inquiry is whether his service connected disabilities precluded him from doing so. After review of the record, the Board finds that his service-connected migraine headaches preclude him from obtaining and maintaining substantial and gainful work. His headaches have been rated as 50 percent disabling since 2006. Under the criteria for rating migraine headaches, a disability rating of 50 percent means that his headaches are productive of severe economic inadaptability. Thus, his headaches have already been accepted as causing significant difficulty in working. During the period on appeal, the Veteran has consistently reported that his headaches interfere with his work and that he has to take time off frequently for his headaches, for which no treatment has been helpful. An October 2012 VA treatment record notes that his headaches had been increasing in frequency and it was affecting his school. In December 2013, his doctor had to complete paperwork regarding the Veteran's headache symptoms so that he could continue in program for disabled students, which allowed him extra time to complete his work. He reported having at least one per week. In October and November 2014, he reported that his headaches were exceptionally worse than they had been, causing increased difficulty in concentrating on his work. He reported worrying that his headaches would hurt his job prospects. At his December 2014 personal hearing, he reported that his headaches cause him to see spots, interfering with his vision. If driving, he has to pull over. He said that, at school, he tries to push through the pain, but if he cannot, he has permission to leave class and lay down in a dark room. A December 2014 VA treatment record shows two to three headaches per week. At the July 2015 VA examination, he continued to have headaches this frequently, accompanied with vomiting and nausea, and sensitivity to light and sound. Activity increased his headache severity, and no abortive or preventative medications were helpful. He reported having missed 40 days of school because of migraines. In June 2016, he continued to have about three migraines per week, and it was noted that topiramate had not been helpful with them. He reported that he was graduating, that his headaches had caused him to take an extra year. At the March 2020 VA examination, he reported that he continued to have headaches about three times per week, but the intensity of the symptoms had increased. Based on the severity and frequency of the Veteran's migraines, and that he needs to be able to lay down in a dark room when they happen, the Board finds that he meets the criteria for a TDIU from September 8, 2011. During this time frame, he attended school, and had part-time work through school, both of which were under a program that was designed to provide accommodations to disabled veterans. Here, the Veteran was given additional time to complete work and the opportunity to leave class when he needed to lie down. This evidence is set forth in the available vocational rehabilitation records and his VA treatment records. Although he has achieved his goal of obtaining a bachelor's degree, the record shows that he still needs to be able to lay down for headaches, which happen at any time (that is, there are no particular triggers that he can avoid). The Board notes that it is unlikely he would be able to find entry level employment even with a college degree that would allow additional time or unscheduled leave and still be considered substantial and gainful. Accordingly, the Board finds that a TDIU is warranted from September 8, 2011. The remaining inquiry is whether a TDIU is warranted for the period prior to September 8, 2011. The Board notes that he does not meet the eligibility requirements prior to September 8, 2011, but further, finds that the record does not show that this should be referred for a decision on whether an extraschedular TDIU is warranted. As mentioned, the Veteran has not filed a formal claim for a TDIU. He has not followed through with requests for information about his employment. The Board notes that a March 2016 resume shows the Veteran worked as a manager/sales representative from June 2008 to August 2011, which is just prior to the date awarded above for TDIU. It is not clear what type of work this was, as he did not provide any evidence of hours worked or salary earned. However, at his personal hearing, he reported that he was working a good job in 2010, earning approximately $21 per hour. It is not clear what his hours were, but a full-time job that pays that much exceeds the poverty threshold. The record strongly suggests that he was working substantially and gainfully from 2008 to 2011, and he has not responded to requests for evidence that would show that was not case. A February 2008 counseling report shows that he worked in housekeeping at the VAMC from approximately June 2005 to September 2008. Although he has reported being fired from that job because of the time that he took off because of his headaches, the Board does not find that statement credible, as the record shows he was fired from that job for failing to disclose criminal charges from his past on his employment application. He has also reported that he was provided accommodations at that job because of his headaches, which conflicts with his statement that he ultimately lost his job because of his headaches. Further, it conflicts with evidence from June 2007 that he was reprimanded for abusing sick leave. Accordingly, the Board does not find it credible that he was given accommodations at that job because of his headaches. Further, the record shows in January 2008 that he made $11.90 an hour, which, if paid on a full-time basis, exceeds the poverty threshold, in 2008, for an adult with two dependent children. The Board notes that a 2011 application shows he had been divorced since the 1990s and had two dependent children living with him at that time. It is unclear whether they were living with him in 2008, but the Board assumes yes, and adding two people to the calculation increases the chances of falling below the poverty threshold, which would be more favorable to him. Here, however, that income still exceeds the poverty threshold, even with the additional dependents. Therefore, his work at the VAMC was not marginal work, as it was not a sheltered or protected environment, and he was paid at a rate that exceeded the poverty threshold. Accordingly, the preponderance of the evidence shows that the Veteran was working substantial and gainful employment from at least June 2005 (prior to the start of the appeal period) until August 2011. The Board notes that he has had multiple opportunities to provide information regarding his employment and income, but has not responded to requests for development. The duty to assist is a two-way street. If the Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 2. Effective November 21, 2014, SMC at the housebound level is granted. The Veteran is now in receipt of a TDIU based on his service-connected migraines, effective from September 8, 2011. After review of the evidence, the Board finds he is entitled to SMC at the housebound rate starting from November 21, 2014, which is the effective date of his other disabilities combine to higher than 60 percent. The Court has held that VA has a "well-established" duty to maximize a Veteran's benefits. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a Veteran's disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C. § 1114. See Bradley, 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"). SMC is payable at the "s" rate (also referred to as the "housebound (HB) rate") where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition: (1) has a 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 HB by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A "single service-connected disability rated as total" under 38 U.S.C. § 1114(s) is not limited to cases where a 100 percent rating has been assigned via the application of one or more diagnostic codes in the rating schedule; rather, entitlement to TDIU may serve as the "total" rating for the purposes of SMC at the "s" rate if the TDIU is predicated upon a single disability. Bradley v. Peake, 22 Vet. App. 280 (2009). Aside from his TDIU for his headaches, the Veteran is also service connected for major depressive disorder associated with migraines, right shoulder, left ankle, right ankle, and right knee. These remaining disabilities combine to more than 60 percent, but not until November 21, 2014. Accordingly, as of November 21, 2014, the Veteran is entitled to SMC at the "s" or "housebound" rate. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.