Case A25003863

GRACE J. SUH · 2025 · Case ID: A25003863

MIXED

Summary

The Veteran, who served from January 1981 to December 1983 and again from November 2001 to November 2002, appeals the denial of Total Disability based on Individual Unemployability (TDIU) prior to November 19, 2018, and the denial of Special Monthly Compensation (SMC) at the housebound rate from that date forward. The Veteran claimed TDIU based on her service-connected thoracolumbar and cervical spine disabilities, alleging they prevented her from securing or following substantially gainful employment. The Board reviewed extensive evidence, including the Veteran's lay statements, VA treatment records, and a private medical opinion. The Board found the Veteran's lay statements regarding her employment history and functional limitations prior to November 19, 2018, to be inconsistent and unreliable, noting she held various part-time positions and engaged in physically demanding activities. Consequently, the Board denied TDIU for the period prior to November 19, 2018. However, from November 19, 2018, the Board found that the Veteran's service-connected cervical spine disability, supported by a private medical opinion and a subsequent VA examination, rendered her unable to perform sedentary work. Resolving all reasonable doubt in her favor, the Board granted TDIU based solely on the cervical spine disability for SMC housebound purposes, effective November 19, 2018. The Board also noted that the Veteran had additional service-connected disabilities independently ratable at 90 percent, satisfying the criteria for SMC housebound.

Rationale

Inconsistent lay statements regarding employment history and functional limitations.; Veteran engaged in physically demanding activities prior to November 19, 2018.; Evidence did not persuasively demonstrate inability to perform substantially gainful employment.

Special Benefit

SMC - HOUSEBOUND; TDIU

Docket No.

210910-183970

Full Decision Text

Citation Nr: A25003863
Decision Date: 01/15/25 Archive Date: 01/15/25

DOCKET NO. 210910-183970
DATE: January 15, 2025

ORDER

A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 19, 2018, is denied.

A TDIU due solely to the Veteran's service-connected intervertebral disc syndrome, spinal fusion cervical spine and cervical spondylosis (cervical spine disability), for purposes of entitlement to special monthly compensation (SMC) at the housebound rate pursuant to 38 U.S.C. § 1114(s) from November 19, 2018, is granted.

SMC at the housebound rate from November 19, 2018, is granted.

FINDINGS OF FACT

1. The most probative evidence of record persuasively establish that the Veteran had the mental and physical ability to secure and maintain substantially gainful employment prior to November 19, 2018.

2. From November 19, 2018, with the resolution of all reasonable doubt in the Veteran's favor, the evidence of record supports a finding that her cervical spine disability alone has prevented her from completing the physical acts required by substantial gainful employment.

3. From November 19, 2018, the Veteran has additional service-connected disabilities independently rated at 60 percent or more, separate and distinct from her service-connected cervical spine disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a TDIU prior to November 19, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16.

2. The criteria for entitlement to a TDIU based solely on the Veteran's service-connected cervical spine disability, for purposes of entitlement to SMC at the housebound rate from November 19, 2018, have been met. 38 U.S.C. §§ 1114(s), 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.350, 4.3, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293 (2008); Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010).

3. The criteria for entitlement to SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) from November 19, 2018, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 3.350.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1981 to December 1983 and from November 2001 to November 2002.

These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2021 rating decision issued by a Department of Veterans Affairs (VA) regional office, an agency of original jurisdiction (AOJ). The July 2021 rating decision was issued in response to a May 2021 VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), seeking review of a January 2021 rating decision.

The Veteran timely initiated an appeal by submitting a September 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Evidence submission docket. Therefore, the Board may only consider the evidence of record at the time the AOJ issued the January 2021 rating decision, which was subsequently subject to HLR in the July 2021 rating decision on appeal, as well as any evidence submitted by the Veteran or her representative with the September 2021 VA Form 10182, or within 90 days following receipt thereof. 38 C.F.R. § 20.303.

If evidence was submitted either (1) during the period after the AOJ issued the decision and prior to the receipt of the September 2021 VA Form 10182, or (2) more than 90 days following receipt of the September 2021 VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300; 20.303, 20.801.

TDIU

A TDIU may
1 rating decision on appeal, as well as any evidence submitted by the Veteran or her representative with the September 2021 VA Form 10182, or within 90 days following receipt thereof. 38 C.F.R. § 20.303.

TDIU

A TDIU may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure of follow a substantially gainful occupation as a result of their service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16.

The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence must show the veteran is incapable of performing the physical and/or mental acts required by employment by reason of their service-connected disabilities.

That the phrase "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components: economic and non-economic components. Ray v. Wilkie, 31 Vet. App. 58, 73-74 (2019). The economic component contemplates an occupation earning more than marginal income, outside of a protected environment, as determined by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. The non-economic component contemplates the veteran's ability to follow and secure employment. In this respect, due consideration must be given to their history, education, skill, and training; physical ability, both exertional and non-exertional, to perform the types of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and mental ability to perform the activities required by the occupation at issue. Given the term sedentary is generally defined as "doing or requiring much sitting" and "not physically active," the Board finds that sedentary employment is a job where the worker primarily sits down and is not physically active. See MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/sedentary (last visited Jan. 14, 2025).

The appropriate factors for consideration are the veteran's employment history, educational and vocational attainment and any other factors bearing on the issue. 38 C.F.R. §§ 3.341, 4.16. However, a veteran's age or the impairment caused by non-service-connected disabilities may not be considered. 38 C.F.R. §§ 3.314, 4.16, 4.19.

Marginal employment is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a)(5). Further, marginal employment may also be found to exist on a facts-found basis. Id. In that regard, employment in a protected environment is encompasses employment that is shielded in some respect from competition in the employment market. See LaBruzza v. McDonough, 37 Vet. App. 111, 122 (2024).

As a preliminary matter, for consideration of a TDIU on a schedular basis, the veteran must meet the disability rating percentage threshold. 38 C.F.R. § 4.16 (a). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more.

In a claim for a TDIU, the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet.
be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more.

A combined 100 percent disability rating does not always render the issue of entitlement to a TDIU moot. The Board is required to maximize all possible benefits to a veteran, which includes consideration of SMC. SMC at the housebound rate or based on housebound status is payable if the veteran has a single permanent disability rated 100 percent disabling and has either (1) additional service-connected disability or disabilities independently rated at 60 percent or more or (2) is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1).

SMC at the housebound rate or based on housebound status are not available to a veteran whose 100 percent disability rating is based on multiple disabilities. Guerra v. Shinseki, 642 F.3d. 146 (Fed. Cir. 2011). However, for purposes of SMC at the housebound rate or based on housebound status, a TDIU satisfies the 100 percent rating requirement if a TDIU is predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more. Bradley, 22 Vet. App. at 293. In other words, a TDIU based on a single disability, but not multiple disabilities, is permitted to satisfy the statutory requirement of a total rating. Id. at 293.

The issue of entitlement to a TDIU prior to November 19, 2018.

The issue of entitlement to a TDIU due solely to a single service-connected disability for purposes of entitlement to SMC at the housebound rate from November 19, 2018.

The Veteran contends that she is entitled to a TDIU retroactive to March 2008 because she was prevented from securing or following substantially gainful employment due to her service-connected intervertebral disc syndrome, spina fusion, with ankylosis of the thoracolumbar spine, with vertebral fracture (thoracolumbar spine disability) and cervical spine disability. See May 2021 VA Form 20-0996; June 2020 VA 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.

As a procedural matter, in a March 2019 rating decision, the AOJ implemented the Board's award of service connection for the thoracolumbar spine and cervical spine disabilities and assigned effective dates of April 10, 2008. In a June 2020 rating decision, the AOJ implemented the Board's award of earlier effective dates of March 4, 2008, for the awards of service connection for the thoracolumbar spine and cervical spine disabilities.

The Board notes that in the July 2021 rating decision on appeal, the AOJ favorably found that since March 4, 2008, the Veteran has had a combined rating of 70 percent with a single disability of 40 percent or more, satisfying the schedular criteria for consideration of a TDIU on a schedular basis. 38 C.F.R. § 3.104(c). Further, the Board notes that she has a combined total rating of 100 percent from November 19, 2018.

Throughout the relevant timeframe, the Veteran has been service connected for the thoracolumbar spine disability (20 percent prior to November 19, 2018, and 40 percent thereafter; cervical spine disability (10 percent prior to November 19, 2018, and 30 percent thereafter; radiculopathy of the right upper extremity (50 percent); radiculopathy of the left lower extremity (10 percent prior to November 19, 2018, and 40 percent thereafter); radiculopathy of the right lower
. 38 C.F.R. § 3.104(c). Further, the Board notes that she has a combined total rating of 100 percent from November 19, 2018.

Throughout the relevant timeframe, the Veteran has been service connected for the thoracolumbar spine disability (20 percent prior to November 19, 2018, and 40 percent thereafter; cervical spine disability (10 percent prior to November 19, 2018, and 30 percent thereafter; radiculopathy of the right upper extremity (50 percent); radiculopathy of the left lower extremity (10 percent prior to November 19, 2018, and 40 percent thereafter); radiculopathy of the right lower extremity (40 percent); a broken little toe on the left foot (10 percent); residuals of an excision of a ganglion cyst on the right index finger scar (10 percent); a scar on the left hip (10 percent); a scar on the lumbar spine (zero percent); and scar on the cervical spine (zero percent).

In her June 2020 VA Form 21-8940, although the Veteran stated that she last worked full-time on November 25, 2002, she also indicated that she became too disabled to work in September 2015. In terms of her employment history, she reported being self-employed from 2004 to 2005 doing office type work 11 hours per week, for which she earned $115 per month. She also reported having worked from March 2013 to September 2015 in a custodial position 12 hours per week, for which she earned $692 per month.

In a June 2020 VA Form 21-4138, Statement in Support of Claim, the Veteran provided further information regarding her employment history. In that statement, she stated that she worked from home making phone calls and filing between 2014 and 2015, but only worked 11 hours per week; however, it was only a temporary position, which ended in 2015. She also worked at a church as a custodian from 2013 to 2015, but only worked about 12 hours per week.

In a July 2020 VA Form 21-4238, the Veteran stated that she was self-employed in 2004 and 2005 but has not been so since that time. Further, she stated that she was not employed in any manner and has not been so in the past 12 months. In a subsequent July 2020 VA Form 21-4238, she clarified that she actually did have job that could be classified as being self-employed. She stated that she works for a company who asks her to keep the "snail mail" that is "junk mail" at her address and send it to them once per month. In the past two years, she has been paid $670 per year.

Inconsistent with her reports, the Veteran's VA treatment records indicate that she has held other positions and worked outside of the timeframes identified in her statements. For instance, a January 2010 VA treatment record noted she was working out of her home but did not provide any further information. During a December 2011 VA back conditions examination, she reported working part-time as an office assistance from home. In October 2012, another VA treatment record documented her report of working from home. A December 2014 VA treatment record documented her report of currently cleaning houses. A July 2015 VA treatment record documented the Veteran's report of working as a custodian. However, she stated that she would be quitting that job. Additionally, she relayed doing the books for her son's business. In December 2015, the Veteran again reported that she was working from home. An October 2016 VA treatment record documented her report of working from home as a bookkeeper for her son's lawncare business and as a professional organizer outside of the home for another woman. Of note, at that time, the VA treatment provider indicated that the Veteran was highly functional despite her complaints and worked daily.

In September 2017, another VA treatment record documented the Veteran's report of working one day a week doing some organizing as a personal assistant. Additionally, she stated that she had been working as a bookkeeper for her son's lawncare business for 20 years but has decided to stop. She stated that she worked for her son with little or no pay. She also reported having previously worked as a photographer's assistant, in a publishing house for 10 years, working as a custodian for three years. Although a July 2018 VA treatment record documented her report of no longer working for her son, she reported continuing to work once a week for the woman. A January 2020 VA treatment record documented her report of being unemployed.

In a
2017, another VA treatment record documented the Veteran's report of working one day a week doing some organizing as a personal assistant. Additionally, she stated that she had been working as a bookkeeper for her son's lawncare business for 20 years but has decided to stop. She stated that she worked for her son with little or no pay. She also reported having previously worked as a photographer's assistant, in a publishing house for 10 years, working as a custodian for three years. Although a July 2018 VA treatment record documented her report of no longer working for her son, she reported continuing to work once a week for the woman. A January 2020 VA treatment record documented her report of being unemployed.

In a September 2021 correspondence, the Veteran stated that she last worked full-time while she was on active duty from 2001 to 2002. She has only done a small amount of work since she had surgeries on her spine in 2005 and 2006 to the present. She has worked as a custodian for her church for a couple of years only working about 15 hours per week. She had to quit this position because the pain became too much. The Veteran clarified that when she reported working as a bookkeeper during a VA healthcare visit in 2014, she was helping her son out from home at her leisure for minimal compensation on a part-time basis.

Based on the limited information the Veteran provided in her June 2020 VA Form 21-8940, certainly, her employment as an office assistant and custodian would constitute marginal employment at best as she would not have earned more than the poverty threshold for one person as determined by the United States Department of Commerce, Bureau of the Census. See United States Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Jan. 13, 2025) (for 2015, the poverty threshold was $12,082).

However, considering the inconsistencies above, the Board finds the Veteran's lay reports unreliable. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (credibility may be appraised by evaluating a witness' statements for interest, bias, demeanor, internal consistency, facial plausibility, or consistency with the other evidence of record). Her lay statements show that she was employed in some capacity into 2018 and at times worked in two or more part-time positions. However, it is unclear whether she was only marginally employed at that time as some information with respect to employment history is missing from her June 2020 VA Form 21-8940.

Assuming arguendo that the Board accepts the Veteran's employment history as reported in her June 2020 VA Form 21-8940, and that she was marginally employed at best, the Board turns to whether she had the ability to follow and secure substantially gainful employment.

In that regard, according to the Veteran's June 2020 VA Form 21-8940, she only has a high school level education and that she had no additional education or training outside of her military service. Her employment history shows that she has experience working in both physically demanding positions, such as custodial work, and less physically demanding positions, such as an office assistant and as a bookkeeper.

In her September 2021 correspondence, the Veteran also reported having medical experience equal to that of a license nurse practitioner (LPN) but did not provide further information in that regard. At that time, she stated that she was no longer able to be on her feet for a long time or do any sort of lifting or bending. Further, the Veteran asserted that her treatment records would show that she had so many appointments due to her medical issues that she would have been unable to work. According to her personal calendar, which she started keeping in 2009, she had nine appointments between September and December 2009; 10 appointments in 2010; five appointments in 2011; seven appointments in 2012; no appointments listed for 2013; 11 appointments in 2014; nine appointments in 2015; 23 appointments in 2016; 25 appointments in 2017; and 48 appointments in 2018. Additionally, she stated that her medications impaired her function because they cause sleepiness, nausea, drowsiness, dizziness, etcetera.

The Board notes that some of these appointments were for non-service connected disabilities, as she was seen for psychological, pulmonary, ear, nose, and throat issues as well as by a Lyme specialist and she does not have a service-connected acquired psychiatric disability nor Lyme disease
appointments in 2010; five appointments in 2011; seven appointments in 2012; no appointments listed for 2013; 11 appointments in 2014; nine appointments in 2015; 23 appointments in 2016; 25 appointments in 2017; and 48 appointments in 2018. Additionally, she stated that her medications impaired her function because they cause sleepiness, nausea, drowsiness, dizziness, etcetera.

As to the appointments generally labeled "Ultrasound," "Tele Nursing appointment," "Rheumatology," "Podiatry," "Phone appointment," "Orthotics," "Consult appointment," "Exam," "Appointment at Baltimore VA," "Appointment at D.C. VA," and "Occupational Therapy," it is unclear whether they were specifically for a service-connected disability. However, a review of the Veteran's VA treatment records corresponding to some of the appointment dates suggests not all were for service-connected disabilities. See, e.g., July 9, 2014, VA Podiatry Consult (noted the Veteran was seen for an evaluation of plantar warts on her left foot); December 14, 2015, VA Podiatry Note (noted the Veteran was seen for plantar fasciitis); October 11, 2016, VA Rheumatology Note (noted the Veteran was seen for a complaint of fibromyalgia, which consisted of symptoms of intermittent fatigue and mental cloudiness); March 2018 VA Primary Care Physician Note (noted the Veteran's report of being seen by an outside chiropractor for right upper arm pain of an unknown etiology, possibly a tear of the biceps/triceps or a muscle strain/sprain); October 16, 2018, VA Occupational Therapy Treatment Plan Note (noted the Veteran was being seen for right shoulder pain).

Additionally, the Board notes that a review of the Veteran's medical records shows that she has been taking medication for service-connected and non-service-connected disabilities. She has not provided more specific information pertaining to the side effects of the medication she has been taking for her service-connected disabilities. Moreover, the medical records do not document any reports of sleepiness, nausea, drowsiness, or dizziness associated with medications she has been prescribed. However, the Board notes that symptoms of fatigue have been attributed to her non-service-connected diagnoses of fibromyalgia and Lyme disease. See October 2016 VA Rheumatology Note; April 2019 VA Pain Medicine Note. As another, in a September 2021 buddy statement, the Veteran's husband indicated that none of the medication she has been prescribed have really helped and she does not take them because she does not want to sleep app the time nor become addicted.

In terms of the functional impact on her ability to work, following a December 2011 VA examination, the VA examiner concluded that she would not be able to work her part-time job during a flare-up of her cervical spine disability because she would need to rest. Similarly, the VA examiner concluded that she would not be able to work her part-time job during a flare-up of her thoracolumbar spine disability because she would need to rest. Of note, at that time, she reported experiencing flare-ups due to working in her year for four to eight hours, which causes severe low back pain lasting up to one day. However, the Veteran's lay reports during the examination do not provide sufficient information to determine how frequently her the flare-ups of her cervical and thoracolumbar spine occurred for the Board to assess whether it would more nearly approximate inability to complete the physical acts required by substantially gainful employment.

In addition to holding various jobs, whether paid or unpaid, the evidence of record shows that the Veteran was physically active prior to November 19, 2018. A January 2010 VA treatment record documented her admission that she was active at home and works with the Nintendo Wii using my fitness coach. A November 2012 VA treatment record documented her report of performing yard work most of the day on Sunday, which lead to increased soreness the next day. A September 2013 VA treatment record documented her report of working in the yard at her in-law's house. A July 2014 VA treatment record documented the Veteran's report of working as a custodian twice a week for 10 hours. A December 2014 VA treatment record documented her report of currently cleaning houses. However, at that time, she reported difficulty going up and down stairs as well as with working down on her hands and knees. By July 2015, a VA treatment record
she was active at home and works with the Nintendo Wii using my fitness coach. A November 2012 VA treatment record documented her report of performing yard work most of the day on Sunday, which lead to increased soreness the next day. A September 2013 VA treatment record documented her report of working in the yard at her in-law's house. A July 2014 VA treatment record documented the Veteran's report of working as a custodian twice a week for 10 hours. A December 2014 VA treatment record documented her report of currently cleaning houses. However, at that time, she reported difficulty going up and down stairs as well as with working down on her hands and knees. By July 2015, a VA treatment record document her report that she would be quitting her job as a custodian.

Significantly, as noted above, an October 2016 VA treatment provider indicated that the Veteran was highly functional despite her complaints and worked daily. A May 2017 VA treatment record documented her report of continuing to do yard work as her exercise activity. She also reported riding a bike occasionally. Again, a September 2017 VA treatment record documented her report of managing her yard for recreation, such as tending to her lawn and flower beds. She also relayed that she sets up meals at church. In addition, she stated that she refinished furniture. Further, she stated that because she lived in a split-level house, she gets exercise going up and down the steps. Generally, she stated that she was always busy and did not sit much. A July 2018 VA treatment record documented the Veteran's report that she was very active outdoors. She relayed that she has numerous flower gardens and a vegetable garden and that she engages in some cycling but that she tends to overdo activities and then suffers later.

Following a November 2018 private examination, Dr. D.B.R. concluded that the Veteran's cervical spine disability in conjunction with her thoracolumbar spine disability would impact her ability to work because it would make walking, lifting, and other activities required for the vast majority of occupational tasks painful and difficult. Dr. D.B.R. concluded that her residuals of an excision of a ganglion cyst on the right index finger would also impact her ability work because she is unable to securely grip implements normally with her right hand.

Following October 2020 VA examinations, a VA examiner concluded that the Veteran's thoracolumbar spine disability would impact her ability to work and noted that she had to stop working due to sitting, standing, and bending, which affected her back pain. Additionally, the VA examiner concluded that the Veteran's cervical spine disability would impact her ability to work and noted that she had to stop working due to stressing affecting her neck pain.

In an October 2020 VA medical opinion, the VA examiner indicated that the Veteran would be unable to even perform sedentary work. In another October 2020 VA medical opinion, the same VA examiner amended their opinion by stating that the Veteran may be able to do limited sedentary work, but also noted that she retired because of stress in her neck from sitting at a desk.

In a September 2021 buddy statement, the Veteran's husband, D.S., described that she could not be on her feet for any length of time without being in a lot of pain. She also could not sit down for a job for the same reason. Even jobs that require sitting like paying the bills, filing, being on the computer require many breaks and takes much longer than normal to complete. Further, D.S. stated that the medications to help her with her pain cause drowsiness and lightheadedness and do not really help with her pain. Consequently, she does not take them. He stated that he has watched the Veteran go from being very energetic to someone who wonders how she will get through the day. All the thing they would do outside, such as yard work, gardening, and hiking have been cut down.

In view of the above, the Board finds that the evidence of record persuasively weighs against a TDIU prior to November 19, 2018. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Even if she was marginally employed based on the income reported by the Veteran in her June 2020 VA Form 21-8940, prior to November 19, 2018, that fact alone does not warrant a TDIU. Further, even if there may have been periods prior to November 19, 2018, where she may not have been working any part-time job, that fact alone would not warrant a TDIU. As noted above, the sole fact that she is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. See Van Hoose, supra. The
v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Even if she was marginally employed based on the income reported by the Veteran in her June 2020 VA Form 21-8940, prior to November 19, 2018, that fact alone does not warrant a TDIU. Further, even if there may have been periods prior to November 19, 2018, where she may not have been working any part-time job, that fact alone would not warrant a TDIU. As noted above, the sole fact that she is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. See Van Hoose, supra. The evidence must show that the Veteran is incapable of performing the physical and/or mental acts required by substantially gainful employment due to her service-connected disabilities.

Here, although the Veteran needed to attend a number of medical appointments prior to November 19, 2018, as discussed above, not all these appointments were due to service-connected disabilities. As such, the Board finds that these appointments would not have prevented her from obtaining and maintaining substantially gainful employment.

The Veteran's inconsistent statements of record suggests that she was at times working more than one part-time job ranging from a physically demanding position as a custodian to less physically demanding positions as an office assistant or bookkeeper.

The Veteran's husband's statements describing the severity of her functional impairment is inconsistent with the other evidence of record, particularly the medical evidence of record, which document the Veteran's own lay reports of greater functional ability at times during the period on review. The Veteran's statements during her medical appointments show that she retained greater physical capability than that shown in her lay statements submitted in support of this claim. See Williams v. Gov't of Virgin Islands, 271 F. Supp. 2d 696, 702 (D.V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Notably, her statements during her medical appointments prior to November 19, 2018, show that she continued to engage in activities generally known to be more physically demanding activity such as yardwork/gardening, cycling, and refinishing furniture. The Veteran herself described that she was always busy, did not sit much, and was very active outdoors. Significantly, as noted above, an October 2016 VA treatment provider indicated that the Veteran was highly functional despite her complaints and worked daily. Thus, there is no evidence of record persuasively demonstrating that she was unable to perform the physical and/or mental acts required by substantially gainful employment due to her service-connected disabilities prior to November 19, 2018.

From November 19, 2018, the Veteran is in receipt of a combined total rating. Nevertheless, the issue of entitlement to a TDIU is not necessarily moot because as a result of the combined total rating. VA has a duty to maximize a claimant's benefits, which, with respect to entitlement to a TDIU, includes consideration of whether a TDIU based on a single disability is warranted for an award of SMC at the housebound rate under 38 U.S.C. § 1114(s). See 38 C.F.R. 3.350(i); see also Bradley, supra; Buie, supra.

Notably, in an August 2019 rating decision, the AOJ awarded increased ratings for the cervical spine and thoracolumbar spine disabilities, based on Dr. D.B.R.'s findings in their November 2018 private examination.

As noted above, Dr. D.B.R. concluded that the Veteran's cervical spine disability in conjunction with her thoracolumbar spine disability would impact her ability to work because it would make walking, lifting, and other activities required for the vast majority of occupational tasks painful and difficult. Thereafter, while the October 2020 VA examiner found that both her cervical spine and thoracolumbar spine disabilities would impact her ability to work, they also provided a conflicting opinion as to whether she would be able to complete any task required by substantially gainful occupation. Although the VA examiner noted that she may be able to do limited sedentary work, they noted that she retired because of stress in her neck from sitting at a desk. Thus, suggesting that her ability work even in a limited sedentary position could be impacted by her cervical spine disability. Consequently, the Board resolves all reasonable doubt in the Veteran's favor and finds that she would be unable to work even in a sedentary, less physically demanding, position due to her service-connected cervical spine disability from November 29, 2018. 38 U.S.C.
bar spine disabilities would impact her ability to work, they also provided a conflicting opinion as to whether she would be able to complete any task required by substantially gainful occupation. Although the VA examiner noted that she may be able to do limited sedentary work, they noted that she retired because of stress in her neck from sitting at a desk. Thus, suggesting that her ability work even in a limited sedentary position could be impacted by her cervical spine disability. Consequently, the Board resolves all reasonable doubt in the Veteran's favor and finds that she would be unable to work even in a sedentary, less physically demanding, position due to her service-connected cervical spine disability from November 29, 2018. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. As such, a TDIU is warranted due solely to her service-connected cervical spine disability.

Aside from the Veteran's service-connected cervical spine disability, the Veteran has additional service-connected disabilities, separate and distinct from the cervical spine disability, which involve different anatomical segments or bodily systems, which are independently ratable at 90 percent.

Accordingly, entitlement to a TDIU due solely to the Veteran's service-connected cervical spine disability is warranted from November 19, 2018, for purposes of entitlement to SMC at the housebound rate is granted, and SMC at the housebound rating is awarded from November 19, 2018.

Grace J. Suh

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Wright, Kadia

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.

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