Citation Nr: 21041668 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-27 422A DATE: July 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from May 17, 2014 to October 24, 2018, but no earlier. Entitlement to special monthly compensation (SMC) at the housebound rate is granted from May 17, 2014. FINDINGS OF FACT 1. Since May 17, 2014, the Veteran's service-connected back disability, alone, has rendered him unable to secure or follow a substantially gainful occupation. 2. Since May 17, 2014, exclusive of temporary total rating periods, the Veteran has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from his total rating for his back disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU are met from May 17, 2014 to October 24, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 2. The criteria for entitlement to SMC at the housebound rate are met from May 17, 2014. 38 U.S.C. §§ 1114, 5017; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1983 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's increased rating claim for a left knee disability. In October 2018, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claim for further development in April 2019. 1. Entitlement to a TDIU is granted from May 17, 2014 to October 24, 2018. A total disability rating 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. 38 C.F.R. § 4.16. The appeal period before the Board stems from the Veteran's November 5, 2012 claim for an increased rating for his service-connected left knee disability, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Board notes that the Veteran is currently in receipt of a TDIU, effective October 24, 2018. See March 2019 rating decision. For the period prior to October 24, 2018, service connection is in effect for bilateral knee disabilities, a bilateral hip disability, a back disability, left lower extremity radiculopathy, bilateral hearing loss, tinnitus, and scars, for a combined rating of 70 percent from November 5, 2012 and 80 percent from October 27, 2014, excluding a temporary 100 percent rating from July 12, 2013 to September 1, 2013. The service-connected knee, hip, and back disabilities are orthopedic disabilities that that affect a single body system. See 38 C.F.R. § 4.16(a)(3). Thus, the Veteran meets the criteria for consideration of a TDIU on a schedular basis for the entire appeal period. 38 C.F.R. § 4.16(a)(2). Thus, what remains to be determined is whether the functional impairment associated with his service-connected disabilities are of such nature and severity as to preclude substantially gainful employment between November 5, 2012 to October 24, 2018. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The evidence reflects that the Veteran was employed full-time by the Marine Corps in the Marine Department Maintenance and worked as a mechanic, planner, and supervisor from February 1993 to May 16, 2014. See October 2018 VA Form 21-4192; see also October 2018 VA Form 21-8940. Since May 16, 2014, the record indicates that the Veteran does not receive income from employment exceeding the federal poverty threshold. Accordingly, Board finds that the economic component of entitlement to a TDIU is met from May 17, 2014, the day following his last day of full-time employment. Regarding the noneconomic component, the Veteran reported completing high school with no other education or training. See October 2018 VA Form 21-8940. The evidence of record indicates that the Veteran is unemployable due to his service-connected back disability, which causes chronic pain and severe restrictions. In June 2013, the Veteran was evaluated by a neurosurgeon for chronic back pain, who noted that the Veteran had severe pain. See June 2013 private treatment record. The neurosurgeon also noted that it was painful for the Veteran to look after himself, he required a cane to walk, he was unable to lift or carry anything, sit more than 1 hour, or stand more than 10 minutes, and got less than 4 hours of sleep due to pain. Id. The Veteran underwent back surgery in July 2013. Thereafter, the Veteran's private primary care provider, Dr. Vora, stated that the back surgery still did not relieve the Veteran's pain and opined it was unlikely that he would improve enough to return to work, as he was in constant pain. See August 2013 statement. In a February 2015 statement, a private physician noted that the Veteran continued to have back pain despite the 2013 back surgery and determined that he was medically disabled. The Veteran testified that he had constant back, knee, and hip pain and that it worsened to the point he took a walker and wheelchair to work, and he ultimately medically retired. See Board Hearing Transcript at 7. In July 2014, the Veteran was hospitalized for suicidal ideation associated with chronic pain. See July 2014 VA treatment record. The VA treatment record at admission notes that the Veteran had chronic pain, especially in his knees and back, and primarily relied on opiates, including Vicodin, Norco, Dilaudid, and morphine, to control his pain. Id. The Veteran stated that the opiate medications made him want to hurt himself and others around him and made him "forget days at a time." Id. He indicated that his chronic pain severely diminished his daily physical activity, so much so that he felt worthless. Id. Subsequent VA treatment records reflect the Veteran's consistent reports of chronic pain and worsening symptoms due to his service-connected orthopedic disabilities, but particularly his back, and shows that the Veteran got a service dog to help him. See July 2015, April 2017, August 2017, May 2018, and July 2018 VA treatment records. The Board observes that the February 2014 VA examiner indicated that the Veteran's orthopedic disabilities did not impact his ability to work. However, the Board emphasizes that the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Given the Veteran's competent and credible reports, his level of education and occupational background, the above-cited evidence of record, and affording him the benefit of the doubt, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation due to his service-connected back disability alone. While the Board acknowledges the Veteran's testimony regarding his hips and knees, awarding a TDIU solely based on his back disability is more favorable, as this allows for an award of SMC. Accordingly, a TDIU is warranted from May 17, 2014, the day following the Veteran's last day of full time employment. Prior to May 17, 2014, a TDIU is denied, as the Veteran was employed full time and therefore did not meet the economic component of a TDIU. See Ray, supra. 2. Entitlement to SMC at the housebound rate is granted from May 17, 2014. Although the Veteran has not claimed SMC at the housebound rate, VA has a well-established duty to maximize a claimant's benefits. One of the instances where SMC at the housebound rate is payable is when a veteran has a single service-connected disability rated as 100 percent and 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. For this purpose, a TDIU may satisfy the requirement for a single disability rated at 100 percent. Here, the Veteran is entitled to a TDIU for his back alone, and he has additional service-connected disabilities ratable in excess of a combined 60 percent from May 17, 2014. Accordingly, he is entitled to SMC at the housebound rate from May 17, 2014. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.