Citation Nr: 25006901 Decision Date: 05/21/25 Archive Date: 05/21/25 DOCKET NO. 17-09 147 DATE: May 21, 2025 REMANDED Entitlement to special monthly compensation (SMC) at the housebound rate, to include whether a total disability rating based on individual unemployability (TDIU) is warranted based solely on the Veteran's service-connected depression disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1974 to January 1976. The Veteran attended a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in January 2019. A transcript of the hearing has been associated with the file. This matter was previously remanded by the Board of Veterans' Appeals (Board) in May 2019 and July 2020. The issue of entitlement to TDIU was granted by the Board in a November 2020 decision. In an August 2021 order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR), which set aside a November 2020 denial by the Board, and remanded the issue for a new opinion. SMC based on a need for the regular aid and attendance of another person under 38U.S.C. §1114(l), was dismissed by the Court in August 2021, because the Veteran was no longer seeking the Court's review of this claim. Accordingly, the issue of entitlement to SMC based on a need for the regular aid and attendance of another person under 38 U.S.C. § 1114(l) is no longer before the Board. In a November 2022 order, the Court granted a Joint Motion for Remand (JMR), which set aside a December 2021 denial by the Board, and remanded the issue for a new opinion. In an August 2023 order, the Court granted a JMR, which set aside a February 2023 denial by the Board, and remanded the issue for a new opinion. In December 2024, the Board denied the appeal. The Veteran appealed the denial to the Court. In December 2024, the Court issued a Memorandum Decision, discussed further below, and remanded the claim back to the Board. 1. Entitlement to SMC at the housebound rate, to include whether a TDIU is warranted based solely on the Veteran's service-connected depression disability. VA may award SMC under 38 U.S.C. § 1114(s) when a veteran has a single service-connected disability rated 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate, and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound due to a service-connected disability or disabilities. 38 C.F.R. § 3.350 (i). For SMC purposes, a TDIU based on a single service-connected disability satisfies the requirement of a "service-connected disability rated as total." Bradley v. Peake, 22 Vet. App. 280, 293 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). However, multiple disabilities may not be counted as a single disability for SMC purposes. See Bradley; Youngblood v. Wilkie, 31 Vet. App. 412, 413 (2019); VAOGCPREC 66-91. The Veteran currently does not have a single disability rated 100 percent or a TDIU based on a single disability. While the Veteran has a TDIU, it is based on the combined effect of the impairment from his depression and skin disabilities, specifically his pseudofolliculitis. See November 2020 Board decision. The December 2024 Memorandum Decision noted that in December 2023, the Board did not address whether the Veteran's service-connected depression alone prevents him from maintaining gainful employment, such that he is entitled to SMC. Specifically, the Court noted the Veteran could be entitled to SMC at the housebound rate, without truly being bound to his house. Accordingly, the Board will consider the threshold issue of whether a TDIU could have been granted based on the Veteran's service-connected depression disability. See Buie, supra. VA may assign a TDIU to veterans who are unable to secure or follow substantially gainful employment because of their service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more. 38 C.F.R. § 4.16 (a). The Veteran's depression disability has been rated at 50 percent since October 28, 2024, and as such, does not meet the threshold minimum percentage requirement for a schedular TDIU based solely upon his service-connected depression disability. Specifically, when considered as a single disability for the purposes of entitlement to a TDIU, the depression disability is not currently rated at 60 percent or more to meet the schedular criteria for a TDIU for a single disability. See 38 C.F.R. § 4.16 (a) (reflecting that, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more). See also Youngblood v. Wilkie, 31 Vet. App. 412, 416-18 (2019) (observing that a TDIU based on multiple service-connected disabilities that are considered as "one disability" under 38 C.F.R. § 4.16 (a) (for example, disabilities affecting a single body system or common etiology) may not be used to establish "a service-connected disability rated as total" for SMC housebound eligibility pursuant to § 1114(s)). Nevertheless, if a veteran does not meet the threshold minimum percentage requirements, rating boards are required to refer to the Director of Compensation Service for extraschedular consideration in all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for a TDIU based solely upon his service-connected depression, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would have justified a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. The Court has clarified that the initial decision whether to remand for extraschedular referral to the Director of Compensation Service under § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. The Board's initial finding that extraschedular referral for TDIU is warranted is a factual one but is necessarily based on an evidentiary threshold that is lower than that for the ultimate decision to award an extraschedular TDIU rating. Ray v. Wilkie, 31 Vet. App. 58, 62-66 (2019). An initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58 (2019). Moreover, the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) includes two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran submitted a VA Form 21-8940 in March 2012, and again in January 2013. The Veteran stated that his service-connected conditions prevented him from securing or maintaining a substantially gainful occupation. The Veteran stated that he has been unemployed since 1985. The Veteran indicated that he previously worked in construction. The Veteran noted that his only source of income was Social Security and his VA pension. Additionally, the Veteran noted that he had no education beyond high school. In a December 2013 statement, Dr. M.M. explained the Veteran's service-connected conditions make it difficult for him to work. Specifically, she explained the Veteran is not capable of performing past work or any other, on a consistent full-time basis due to his service-connected disabilities. She provided a positive response to the question of whether it is reasonable that the Veteran's service-connected symptoms would affect his ability to maintain concentration or work pace on even simple, routine tasks for 90 percent of the work day. See VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date 12/20/2013, pages 1, 3 of 4. Although Dr. M.M. did not delineate exactly which service-connected medical condition would prevent the Veteran's ability for employment, because she included several of the Veteran's medical conditions, the Board interprets Dr. M.M.'s intent to be that the Veteran's depression does prevent him from maintaining gainful employment. In a December 2013 statement from Dr. I.T., he opined the Veteran's psychiatric condition can specifically interfere with his work/daily activities. Specifically, he explained the Veteran is not capable of past work or any other work on a consistent full time basis (8 hours day/5 days a week). See VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date 1/3/2014, pages 1, 3 of 3. In a February 2015 statement from Dr. D.M., he opined that he agrees with Dr. I.T. and Dr. M.M. that the Veteran's psychological symptoms would prevent him from performing his past work or any other type of work on a consistent basis. See VBMS, document labeled Medical Treatment Record- Non-Government Facility, receipt date 6/4/2015, page 6 of 6. Given the above summarized evidence, the Board finds that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected depression alone. Ray v. Wilkie, 31 Vet. App. 58 (2019), and a referral to the Director of Compensation is warranted for extraschedular consideration in the first instance. 38 C.F.R. § 4.16(b). Further, as the issue of entitlement to SMC pursuant to 38 U.S.C. § 1114(s) depends on the outcome of the consideration for an extraschedular TDIU due to the Veteran's depression disability, these issues are inextricably intertwined, and a remand is also warranted for entitlement to SMC at the housebound rate. The matters are REMANDED for the following action: 1. Refer the Veteran's claim to the Director of Compensation Service for consideration of extraschedular TDIU based solely on the depression disability for the purposes of eligibility for SMC pursuant to 38 U.S.C. § 1114(s). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Smith, Associate 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.