Citation Nr: 25003036 Decision Date: 03/04/25 Archive Date: 03/04/25 DOCKET NO. 19-11 977 DATE: March 4, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) based solely on lumbar spine degenerative disc disease (lumbar spine) is granted. Entitlement to special monthly compensation at the housebound rate under 38 U.S.C. § 1114(s) is granted. REMANDED Entitlement to TDIU prior to September 28, 2021, is remanded. FINDINGS OF FACT 1. The Veteran has been unable to obtain and maintain substantially gainful occupation due to his service-connected lumbar spine disability. 2. The Veteran's lumbar spine disability has resulted in a TDIU, and he has additional service-connected disabilities separately ratable as at least 60 percent disabling. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU due to service-connected lumbar spine disability have been met from September 28, 2021, forward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 2. The criteria for special monthly compensation at the housebound rate have been met from September 28, 2021, forward. 38 U.S.C. §§ 1114(s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1991 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2024, the Court granted a Joint Motion for Partial Remand (JMR). 1. Entitlement to a TDIU based solely on lumbar spine The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. Webster's II New College Dictionary 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). The Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected disabilities from September 28, 2021, forward. 38 C.F.R. § 4.16(a). Military personnel records reflect the Veteran's military occupation specialty (MOS) was that of fire support man and parachutist. The Veteran reported working as a Junior Reserve Officers' Training Corps (JROTC) instructor until his retirement in 2011. The Veteran underwent VA examinations for his back in August 2019, October 2021, and November 2023. During these examinations, the Veteran's limitations were noted as follows: pain getting out of bed, trouble sleeping, the inability to tie his shoes, difficulty bending, difficulty lifting more than five pounds, the inability to stand more than three minutes or walk more than five minutes, the inability to do physical labor such as prolonged standing, walking, running, lifting heavy objects, climbing, bending, or stooping, and the inability to do sedentary aspects such as driving or working at a computer due to pain and the inability to sit. See C&P Exams, August 2019, October 2019, and November 2023. The Veteran's prior employment history demonstrated that he was involved in physical occupations that would be impacted by his back disability due to the inability to engage in physical activity. His lumbar spine disability additionally impacts sedentary work as he is unable to sit for any extended period of time and the pain causing interrupted sleep impacts his ability to focus at a sedentary job. As the Veteran has consistently suffered from these symptoms that impact his ability to work, the Board finds that he has been unable to obtain and maintain substantially gainful employment due to his lumbar spine disability alone. As such, entitlement to TDIU based solely on his lumbar disability is granted from September 28, 2021, forward is granted. 38 C.F.R. § 4.16(a). 2. Special Monthly Compensation from September 28, 2021 VA has a "well-established" duty to maximize a claimant's benefits. See 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 claimant's disabilities to determine whether any combination of disabilities establishes entitlement special monthly compensation (SMC) under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 20 (2008) (finding that SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim). Special monthly compensation is payable where the 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. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.§ 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. In this case, the Board has granted a TDIU based on his lumbar spine disability alone from September 28, 2021, forward. For special monthly compensation purposes, this disability satisfies the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Veteran also has additional disabilities of bilateral lower extremity radiculopathy, bilateral hearing loss, tinnitus, and hypertension, with a combined rating of at least 60 percent since September 28, 2021. Thus, in light of the Court's decisions in Bradley and Buie, entitlement to special monthly compensation at the housebound rate under 38 U.S.C. § 1114(s) is granted from September 28, 2021. REASONS FOR REMAND 1. Entitlement to TDIU prior to September 28, 2021, is remanded. Prior to September 28, 2021, the Veteran does not meet the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16(a). The Veteran contends that his service-connected disabilities prevented him from obtaining gainful employment. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (August 2019). The evidence suggests that the Veteran may have been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. For example, VA examinations indicate that the Veteran has extreme difficulty hearing due to his bilateral hearing loss. See C&P Exam, August 2020. Although the Veteran does not meet the schedular criteria for TDIU consideration, the evidence raises the question of whether the Veteran was unable to secure or follow a substantially gainful occupation prior to this date as a result of his service-connected disabilities. As the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance, the matter is remanded so that it may be referred to VA's Director of Compensation Service for consideration. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer the claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis in accordance with 38 C.F.R. § 4.16 (b). Frederic P. Gallun Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.H., 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.