Decision A26040947

Citation Nr: A26040947
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 200625-96718
DATE: April 30, 2026

ORDER

Entitlement to an initial 50 percent rating, but no higher, for migraine headaches is granted. 

Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted; effective October 2, 2018.

Entitlement to a total disability rating based on individual unemployability (TDIU) due solely to the Veteran's PTSD is granted; effective October 2, 2018. 

Entitlement to a special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) is granted; effective October 2, 2018.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, his migraine headaches have been frequent, completely prostrating, and involving prolonged attacks productive of severe economic inadaptability. 

2. Resolving reasonable doubt in the Veteran's favor, the severity, frequency, and duration of the Veteran's PTSD symptoms have more closely approximated occupational and social impairment with deficiencies in most areas. 

3. Since October 2, 2018, the Veteran's service-connected PTSD has rendered him unemployable. 

4. Since October 2, 2018, the Veteran has been in receipt of a TDIU due solely to his PTSD and has additional service-connected disabilities independently ratable at 60 percent or more disabling. 

CONCLUSIONS OF LAW

1. The criteria for an initial 50 percent rating, but no higher, for migraine headaches have been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100.

2. The criteria for a 70 percent rating, but no higher, for PTSD have been met; effective October 2, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.    

3. The criteria for a TDIU based solely on the Veteran's PTSD have been met; effective October 2, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16.

4. The criteria for SMC at the housebound rate have been met; effective October 2, 2018. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. §§ 3.102, 3.350, 4.25, 4.26. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1972 to November 1976. 

The matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

In the June 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in April 2024. 

Therefore, the Board may only consider the evidence of record at the time of the June 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision
 hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Increased Rating 

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

1. Entitlement to an increased rating for migraine headaches. 

By way of procedural background, a May 2019 rating decision granted service connection for migraines headaches and assigned an initial noncompensable rating effective July 12, 2018. In April 2020, within one year of the May 2019 rating decision, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of assigned rating for migraine headaches. In June 2020, the AOJ issued the decision on appeal, which denied the claim for an increased rating. Accordingly, the Board finds that the Veteran has continuously pursued his claim for a higher initial rating for his migraine headaches. See 38 C.F.R. § 3.2500.

As previously discussed, the Veteran is in receipt of an initial noncompensable rating for migraines headaches pursuant to Diagnostic Code 8100. During the April 2024 Board hearing, the Veteran testified that, throughout the review period, he has had debilitating headaches more than once a month that affect his "occupational bases." Additionally, he reported having daily migraine headaches that "come and go" and that the severity varies. He further reported having severe headaches twice a week that requires him to go to a quiet place, wear an eye mask, and lay down to try to "sleep it off." He also indicated having sensitivity to light and sound as well as feeling nauseous. 

Under Diagnostic Code 8100, a noncompensable rating is warranted for migraine with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one to two months over last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under Diagnostic Code 8100. 38 C.F.R. § 4.124a, Diagnostic Code 8100,

The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30?Vet. App.?245, 252 (2018). This renders 38?C.F.R. §§?4.7 and 4.21 inapplicable. Id. 

The phrase
 A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under Diagnostic Code 8100. 38 C.F.R. § 4.124a, Diagnostic Code 8100,

The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30?Vet. App.?245, 252 (2018). This renders 38?C.F.R. §§?4.7 and 4.21 inapplicable. Id. 

The phrase "characteristic prostrating attacks" is used in the criteria under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness.

The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id.  The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18?Vet. App.?440, 445-46 (2004).

Turning to the evidence of record, the Veteran was provided a VA examination in September 2018. The examiner noted that the Veteran took medication for his migraine headaches, to include Acetaminophen, Excedrin, Meloxicam, and Ibuprofen. He had symptoms of constant head pain, pulsating or throbbing head pain, pain on both sides of the head, pain that worsens with physical activity, sensitivity to light and sound, and changes in vision. The Veteran reported having daily headaches on both sides of the head. The examiner surmised that the Veteran had characteristic prostrating attacks of migraines and that, on average, they occur more than once per month. The examiner further opined that the Veteran had prostrating and prolonged attacks of migraines productive of severe economic inadaptability. 

A December 2018 VA treatment record noted daily, chronic headaches with episodic dizziness/ light-headedness, worse with standing after sitting too long. Thereafter, the Veteran began craniosacral therapy for his headaches in February 2019. See February 13, 2019 VA treatment record. 

The Veteran was provided a VA examination in April 2019. The examiner noted that the Veteran took Excedrin for his migraine headaches. He had symptoms of pain localized to one side of the head, pain on both sides of the head, sensitivity to light and sound, changes in vision, and duration of less than a day. The examiner surmised that the Veteran did not have characteristic prostrating attacks of migraines. The examiner further opined that the Veteran did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner noted that the Veteran's migraine headaches cause difficulty falling asleep and focusing. 

An April 2020 VA treatment record noted daily headaches as well as ongoing physical therapy to treat his migraine headaches. It was noted that the Veteran may consider a trial of Gabapentin or Topamax for headache prevention. 

During a May 2020 VA examination, the examiner noted daily use of Excedrin for migraine headaches. The Veteran had symptoms of constant head pain, pain localized to one side of the head, sensitivity to light and sound, changes in vision, and duration of less than a day. The examiner surmised that the Veteran did not have characteristic prostrating attacks of migraines. The examiner further opined that the Veteran did not have very prostrating and prolonged attacks
 headaches cause difficulty falling asleep and focusing. 

An April 2020 VA treatment record noted daily headaches as well as ongoing physical therapy to treat his migraine headaches. It was noted that the Veteran may consider a trial of Gabapentin or Topamax for headache prevention. 

During a May 2020 VA examination, the examiner noted daily use of Excedrin for migraine headaches. The Veteran had symptoms of constant head pain, pain localized to one side of the head, sensitivity to light and sound, changes in vision, and duration of less than a day. The examiner surmised that the Veteran did not have characteristic prostrating attacks of migraines. The examiner further opined that the Veteran did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner also opined that the Veteran would have difficulty performing occupational tasks due to debilitating headaches. 

Considering the evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that an initial 50 percent rating for migraine headaches is warranted. 

The Board notes that the Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's reports regarding the frequency and severity of his migraine headaches are generally consistent throughout the record, and are reflective of a long history of uncontrolled, frequent prostrating migraines. Accordingly, the Board finds his statements to be credible. Additionally, the evidence for record indicates that his headaches have been frequent, prolonged and characteristically prostrating. His reports of sensitivity to light and sound, dizziness, changes in vision, needing to lay down, along with the frequency of the headaches, shows economic inadaptability. Lastly, the September 2018 VA examiner opined that the Veteran had prostrating and prolonged attacks of migraines productive of severe economic inadaptability. 

Accordingly, an initial 50 percent rating is warranted. This is the maximum rating available under Diagnostic Code 8100. 

2. Entitlement to an increased rating for PTSD. 

The Veteran's representative contends that a 70 percent rating for PTSD is warranted effective January 7, 2019. 

At the outset, the Board must address the date of the Veteran's claim for an increased rating for PTSD. By way of procedural background, a September 2018 rating decision granted service connection for PTSD and assigned an initial 30 percent rating effective July 12, 2018. The Veteran submitted an intent to file on October 2, 2018. Thereafter, in January 2019, he submitted a VA Form 21-526EZ, seeking an increased rating for PTSD. In a May 2019 rating decision, the AOJ continued the assigned 30 percent rating for PTSD. In April 2020, within one year of the May 2019 rating decision, the Veteran submitted a VA Form 20-0995, Supplemental Claim, and requested readjudication of assigned rating for PTSD. In June 2020, the AOJ issued the decision on appeal, which granted a higher 50 percent rating for PTSD effective June 17, 2020. Accordingly, the Board finds that the date of the October 2, 2018 intent to file is considered the date of the claim because the Veteran submitted his claim for an increased rating in January 2019, within one year of the intent to file. See 38 C.F.R. § 3.2500. Additionally, the Veteran has continuously pursued his claim for an increased rating since the October 2, 2018 intent to file. Id. 

Throughout the review period, the Veteran is in receipt of a 30 percent rating for PTSD prior to June 17, 2020, and a 50 percent rating thereafter pursuant to Diagnostic Code 9411. 

The Board notes that Diagnostic Codes 9411 are subject to the criteria listed under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-18 (Fed. Cir. 2013). 

In
 must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-18 (Fed. Cir. 2013). 

In relevant part, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name, or place; or memory loss for names of close relatives, own occupation or own name.

After review of the evidence of record, and in resolving all doubt in the Veteran's favor, the Board finds that a 70 percent rating is warranted from October 2, 2018, as the Veteran's PTSD symptoms most nearly approximated occupational and social impairment with deficiencies in most areas. 

The evidence of record indicates that the Veteran's symptoms associated with his PTSD resulted in occupational and social impairment with deficiencies in most areas due to such symptoms as: suicidal ideation, depressed mood, anxiety, suspiciousness, panic attacks that occur weekly, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, obsessional rituals that interfere with routine activities, difficulty establishing and maintaining effective work and social relationships, and flattened affect.

It is important to note that the January 2019 and June 2020 VA examiners found that the Veteran's PTSD symptoms commensurate with ratings less than 70 percent. Nevertheless, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead, 29 Vet. App. at 19 (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas"). Here, the Veteran's VA treatment records, private evaluation, VA examination reports, and April 2024 Board hearing testimony reveal that he endorsed having suicidal ideation throughout the review period. See December 30, 2019 VA treatment records; March 2019 private evaluation; and June 2020 and October 2023 VA examination reports. While he did not always report to VA clinicians and examiners, the Board finds his statements endorsing suicidality to be probative as to his general contemplation of self-harm. Thus, given his suicidal ideation, and the fact that his acquired psychiatric symptoms have caused occupational and social deficiencies, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for
"). Here, the Veteran's VA treatment records, private evaluation, VA examination reports, and April 2024 Board hearing testimony reveal that he endorsed having suicidal ideation throughout the review period. See December 30, 2019 VA treatment records; March 2019 private evaluation; and June 2020 and October 2023 VA examination reports. While he did not always report to VA clinicians and examiners, the Board finds his statements endorsing suicidality to be probative as to his general contemplation of self-harm. Thus, given his suicidal ideation, and the fact that his acquired psychiatric symptoms have caused occupational and social deficiencies, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 70 percent rating have been met throughout the review period.

The Board has also considered a higher total 100 percent rating during the period on appeal. However, the Board finds that at no point pertinent to the higher rating claim has the Veteran displayed a total level of psychiatric impairment. There is no allegation or objective findings suggesting that he experienced gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, his occupation, or his own name. Throughout the appeal period, the Veteran has maintained an overall good relationship with his children, grandchildren, and siblings. Regarding his occupational history, the evidence indicates that the Veteran participated in a Title Five program that encouraged seniors to reenter the workforce on a part-time basis. Specifically, the Veteran engaged in clerical work at a Vet Center until November 2018. The evidence indicates that he has not held any other type of employment during the applicable review period. 

The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. As previously discussed, the rating criteria does not define the term "persistent." Merriam-Webster dictionary defines "persistent" as "existing for a long or longer than usual time or continuously." Here, although the Veteran reported having suicidal ideation, he denied intent or a plan involving self-harm in existing contemporaneous VA records and during the VA examinations. See Bankhead, 29 Vet. App. at 19. While the Board does not minimize the gravity of the Veteran's experience, the evidence does not rise to the level of presenting a persistent danger of self-harm as articulated in the 100 percent rating criteria. 

The presence or absence of certain symptoms is not necessarily determinative; rather, those symptoms must ultimately result in the level of occupational and social impairment in the referenced areas for a higher rating to be awarded.  Vazquez-Claudio, 713 F.3d at 114. Here, the Veteran's symptoms have more closely approximated the symptoms associated with a 70 percent rating and result in a level of impairment that most closely approximates the level of impairment associated with a 70 percent rating.

In sum, the Board finds that a 70 percent rating, but no higher, is warranted for the Veteran's PTSD effective October 2, 2018. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

3. Entitlement to a TDIU. 

When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). Therefore, the Board has added a claim of entitlement to a TDIU rating. Specifically, the Veteran's representative has argued that a TDIU based solely on the Veteran's PTSD is warranted. 

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. 

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 
 a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. 

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. Marginal employment may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. §§ 4.16(a), 4.18.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Board notes that given the grant of an initial 70 percent rating for PTSD herein, the Veteran has meet the schedular requirements for a TDIU from October 2, 2018. 38 C.F.R. § 4.16(a).

As to the economic component, the evidence of record indicates that the Veteran last worked full-time as a circuit court clerk in 2011. As previously discussed, the Veteran participated in a Title Five program that allowed him to work part-time as a clerk in a Vet Center for approximately one year until November 2018. The Veteran has not engaged in other employment during the applicable review period of the appeal. 

The Board finds that although the Veteran was working in some capacity in 2018, he did not earn more than the poverty level. Notably, the Veteran's recorded earnings from 2018 were $9,495.00. See June 2024 SSA/SSI Letter. The poverty threshold for one person in 2018 was $12,784.00. See, U.S. Census Bureau, Poverty Thresholds (census.gov). Thus, as the Veteran's earned annual income in 2018 did not exceed the poverty threshold amount for one person it cannot be considered substantially gainful employment for the purposes of a TDIU. Accordingly, the Board finds that the Veteran's employment in 2018 was marginal. 

Given the significant impairment from his PTSD, as discussed in detail herein, it does not appear that the Veteran could return to a substantially gainful level of employment in his prior occupation. Additionally, during the April 2024 Board hearing, the Veteran reporting having difficulty with coworkers and supervisors, as well as difficulty concentrating due to his PTSD. Lastly, the May 2024 private vocational opinion noted that limitations in psychological functioning, due to service-connected PTSD, would preclude him from performing
 Veteran's earned annual income in 2018 did not exceed the poverty threshold amount for one person it cannot be considered substantially gainful employment for the purposes of a TDIU. Accordingly, the Board finds that the Veteran's employment in 2018 was marginal. 

Given the significant impairment from his PTSD, as discussed in detail herein, it does not appear that the Veteran could return to a substantially gainful level of employment in his prior occupation. Additionally, during the April 2024 Board hearing, the Veteran reporting having difficulty with coworkers and supervisors, as well as difficulty concentrating due to his PTSD. Lastly, the May 2024 private vocational opinion noted that limitations in psychological functioning, due to service-connected PTSD, would preclude him from performing substantial gainful activity. 

In sum, resolving all reasonable doubt in the Veteran's favor, given his employment history, and his level of disability due to his service-connected PTSD, the Board finds that it is unlikely that the Veteran could secure or follow a substantially gainful occupation consistent with his educational level and occupational experience. Therefore, entitlement to a TDIU is granted effective October 2, 2018. 

4. Entitlement to SMC at the housebound rate.

VA has a "well-established" duty to maximize a claimant's benefits. This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114.

SMC 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.

(Continued on the next page)

?

Here, the Board has awarded the Veteran a TDIU based solely on PTSD effective October 2, 2018. For SMC purposes, this disability satisfies the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011). Since October 2, 2018, the Veteran also has additional disabilities rated at 60 percent or higher (migraines headaches and bilateral tinnitus). Thus, SMC at the housebound rate under 38 U.S.C. § 1114(s) is granted effective October 2, 2018.

 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Robinson

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.