Case A26036493

G. E. WILKERSON · 2026 · Case ID: A26036493

MIXED

Summary

The veteran, who served from March 1978 to June 1987, appeals the denial of Total Disability based on Individual Unemployability (TDIU) prior to January 15, 2022, and the grant of TDIU and Special Monthly Compensation (SMC) at the housebound rate from January 15, 2022, to September 7, 2022. The veteran claimed entitlement to TDIU based on his service-connected PTSD, migraines, tinnitus, and hemorrhoids. The Board reviewed evidence including VA examinations and treatment records, as well as the veteran's and his wife's statements. While VA examiners noted that migraines and tinnitus impacted occupational tasks, they did not preclude substantially gainful employment. The Board found the veteran's lay statements regarding PTSD symptoms, such as diminished memory and angry outbursts, to be credible and probative, supported by a VA examiner's findings of occupational and social impairment due to PTSD. The Board determined that these PTSD symptoms, combined with other factors, precluded the veteran from securing or following substantially gainful employment from January 15, 2022. The Board also found the veteran's employment prior to January 15, 2022, to be more than marginal, and the evidence weighed against unemployability for that period. The Board granted TDIU from January 15, 2022, to September 7, 2022. The Board also granted SMC at the housebound rate for the same period, as the veteran had a TDIU based on PTSD (rated 70%) and additional disabilities totaling 60%, meeting the criteria for SMC(s).

Rationale

Veteran's PTSD symptoms precluded substantially gainful employment from January 15, 2022.; Veteran was engaged in marginal employment from January 15, 2022.; Credible lay statements and VA examiner findings supported occupational impairment due to PTSD.

Special Benefit

TDIU; SMC

Docket No.

251218-616402

Full Decision Text

Citation Nr: A26036493
Decision Date: 04/20/26 Archive Date: 04/20/26

DOCKET NO. 251218-616402
DATE: April 20, 2026

ORDER

Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to January 15, 2022, is denied.

Entitlement to a TDIU from January 15, 2022, to September 7, 2022, is granted.

Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) from January 15, 2022, to September 7, 2022, is granted.

FINDINGS OF FACT

1. Prior to January 15, 2022, the Veteran's service-connected disabilities did not preclude him from maintaining substantially gainful employment.

2. From January 15, 2022, to September 7, 2022, the Veteran's service-connected posttraumatic stress disorder (PTSD) precluded him from maintaining substantially gainful employment.

3. A TDIU is moot from September 7, 2022.

4. From January 15, 2022, to September 7, 2022, the Veteran is entitled to a TDIU due solely to his service-connected PTSD symptoms, and his migraines, tinnitus, and hemorrhoids are rated at a combined 60 percent, qualifying him for SMC at the housebound rate.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a TDIU prior to January 15, 2022, have not been met. 38 U.S.C. § 1155, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19.

2. The criteria for entitlement to a TDIU from January 15, 2022, to September 7, 2022, have been met. 38 U.S.C. § 1155, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19.

3. The criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(s)(1) from January 15, 2022, to September 7, 2022, have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1978 to June 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2024 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

In December 2024, the Veteran also submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a September 2024 rating decision. In December 2024, the AOJ issued the HLR rating decision on appeal, which considered the evidence of record at the time of the prior September 2024 rating decision.

In a December 2025 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the September 2024 rating decision, which was subsequently subject to HLR. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the September 2024 rating decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 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 claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to a TDIU

The Veteran contends he is entitled to a TDIU from January 15, 2022, when the Veteran's service-connected PTSD symptoms required him to change from full-time employment to part-time employment. See December
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 claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to a TDIU

Initially, the Board observes the AOJ adjudicated the Veteran's TDIU claim as moot in September 2024 because the Veteran is in receipt of a 100 percent total rating from September 7, 2022. However, the issue of TDIU is not moot prior to September 7, 2022.

Moreover, the receipt of a 100 percent schedular rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating may still form the basis for assignment of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280 (2008). VA's duty to maximize a claimant's benefits includes consideration of whether disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242 (2011).

Specifically, SMC(s) may be warranted if the Veteran has a 100 percent disability rating for a single disability, and a separate rating or ratings that total 60 percent. The single disability rated as total may be satisfied by an award of TDIU if that is based on a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008).

In this case, the Board notes the issue of TDIU is moot from September 7, 2022, because the Veteran is in receipt of a 100 percent disability rating for his PTSD and is already awarded SMC(s) at the housebound rate due to his PTSD from September 7, 2022. See December 2024 HLR Rating Decision Codesheet.

However, prior to September 7, 2022, the Veteran was not in receipt of a total disability rating. Thus, the question before the Board is whether the Veteran is entitled to a TDIU prior to September 7, 2022.

As for the date of claim on appeal, the Board notes that the Veteran has continuously pursued his claim for a TDIU since filing a supplemental claim in response to a November 2019 rating decision granting service connection for PTSD and migraine headaches, effective February 2, 2012. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part and parcel of any open rating issue (initial or increased) when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal, and it attaches for the entire rating period. Accordingly, the matter stems from the February 2, 2012, claim.

Having reviewed the record, the Board concludes entitlement to TDIU is warranted due to the Veteran's service-connected PTSD disability from January 15, 2022, but not earlier.

A TDIU may be assigned when the schedular rating is less than total and 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.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4
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.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table).

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 (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 occupation. 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 a 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.

Marginal employment is not considered substantially gainful, meaning that veterans who are engaged in marginal employment may be awarded a TDIU even though they are working. 38 C.F.R. § 4.16(a); See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Marginal employment generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the yearly poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income does exceed the poverty threshold. Id.

Accordingly, a veteran may be granted TDIU despite being employed and having an income in excess of the poverty line if his employment is in a protected environment. While the Veteran's appeal was pending, the Court issued a precedential opinion in the cases of Labruzza & McBride v. McDonough, 37 Vet. App. 111 (2024), which defined the term "employment in a protected environment." In LaBruzza, the Court held that "employment in a protected environment" means a veteran is working in a "lower-income position that produces earned annual income that exceeds the poverty threshold, but, due to service-connected disability, is shielded in some respect from competition in the employment market." The phrase "employment in a protected environment" considers receipt of accommodations required by the Americans with Disabilities Act (ADA), which do not shield a person from the competitive labor market; however, accommodations beyond ADA accommodations may be relevant.

Entitlement to a 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 (2014). The determination of unemployability is to be made by a VA adjudicator and is not a medical question. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). A showing of 100 percent unemployability is not required. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. See Van Hoose v. Brown, 4 Vet. App. 361
. See Todd v. McDonald, 27 Vet. App. 79 (2014). The determination of unemployability is to be made by a VA adjudicator and is not a medical question. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). A showing of 100 percent unemployability is not required. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Prior to September 7, 2022, the Veteran was service-connected for PTSD rated at 70 percent, migraines rated at 50 percent, and tinnitus and hemorrhoids rated at 10 percent. See December 2024 HLR Rating Decision Codesheet. Thus, he meets the schedular requirements throughout the appeal period.

With the schedular criteria met, the remaining question is whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. 38 C.F.R. § 3.321, 3.340, 3.341, 4.16.

Turning to the evidence of record, the Veteran first filed an application for TDIU in November 2020, indicating he was unable to work during the daytime due to his service-connected migraines. The Veteran did not report when he last worked or when he became too disabled to work. Instead, he reported owning a window business that did not generate any profits. See November 2020 VA Form 21-8940. He also submitted SSA records showing he had no taxable income. See SSA Records received November 2, 2020. The Veteran also reported finishing high school and having no other education or training. See November 2020 VA Form 21-8940.

On VA psychiatric examination in February 2013, the Veteran reported that he previously owned a janitorial business, which he sold. He began a small business in window treatment sales, repair and cleaning. He indicated that he still worked at this job and did well.

A February 2018 VA psychiatric examination reflects the Veteran was still working doing janitorial work. He worked at night, which he enjoyed because he did not have to talk to others. Prior to his current job, he did logistics at a warehouse. He dropped several computers and was fired due to the incident. He was finishing his bachelor's degree at the time of graduation and was scheduled to graduate in June 2018.

During a December 2020 VA examination for migraines, the examiner remarked that the Veteran's migraines caused difficulty in focusing and functioning when a headache was present. These migraines impaired the Veteran's ability to perform physical occupational tasks but not the sedentary activities of employment.

During a December 2020 VA examination for hemorrhoids, the examiner noted the Veteran's hemorrhoids did not impact the Veteran's ability to work.

VA treatment records received on December 29, 2020, showed the Veteran reported losing work as a custodian; he did not report this work on his November 2020 VA Form 21-8940. See December 14, 2020, Treatment Note. However, the Veteran did not lose this job due to his service-connected disability, but because of his employer losing contracts due to the COVID-19 Pandemic. See November 25, 2020 VACO Social Work Consultation. At this time, the Veteran indicated he would like to work again, but he preferred working at night when it is dark due to his headaches. Id.

In a January 2021 VA examination for his PTSD, the examiner noted the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Concerning his relevant occupational and educational history, the examiner noted the Veteran's window business, which was also temporarily suspended due to the COVID-19 Pandemic. The examiner indicated the Veteran experienced numerous PTSD symptoms, which most significantly included difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran reported that he his business had been temporarily suspended since the COVID-19 pandemic began.

In a February 2021 VA examination for tinnitus, the examiner stated the Veteran's tinnitus impacts his ability to work because it was very distracting and annoying; he used a tinnitus masker to help manage the ringing.

VA treatment records received on February 2, 2021, show that the Veteran reported his employment was part-time at the window business due to the COVID-19 Pandemic. See January
COVID-19 Pandemic. The examiner indicated the Veteran experienced numerous PTSD symptoms, which most significantly included difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran reported that he his business had been temporarily suspended since the COVID-19 pandemic began.

VA treatment records received on February 2, 2021, show that the Veteran reported his employment was part-time at the window business due to the COVID-19 Pandemic. See January 15, 2021, Treatment Note. He still reported being the owner of his window business. See January 29, 2021, Psychiatry Note.

In a letter dated November 11, 2021, the Veteran indicated he worked as a window treatment specialist, which included ordering, selling, installing, cleaning, and repairing windows. The Veteran had to climb ladders, lift heavy materials, and drive for long periods of time as a part of this work. He also indicated he still had this job because his family owns the business and has protected his employment. He reported taking many sick days due to his service-connected migraines, depression, and anxiety attacks. At work, the Veteran forgot to return calls, and he reported several angry outbursts. He indicated that, as a result of his difficulties, occupational tasks had been reduced to making labels and answering phones.

The Veteran's wife also submitted a statement documenting his diminished occupational tasks. She indicated that she was a business partner with her husband in the window business. She reported the Veteran had excessive fatigue, irritation, lack of sleep, and migraines, which caused him to go from working 40 hours a week to 16 hours a week. His substandard performance caused the business to lose money and customers. She also reported the Veteran could no longer perform the occupational tasks required of his job because she did not trust him to make sound decisions. She allowed him to do a couple of hours of work when he was able to, to give him a sense of belonging.

On VA psychiatric examination in September 2022, the Veteran reported that he last worked in 2021.

Finally, in February 2023, the Veteran submitted a new VA Form 21-8940, in which he reported becoming too disabled to work on January 15, 2022. Prior to this date, the Veteran reported earning $2,700 per month working in his window business. After this date, the Veteran moved to part-time work and reported only earning $673 per month. The Veteran reported no longer working for his window business as of October 2022. The Veteran again indicated he finished high school and had no other education or training. See February 2023 VA Form 21-8940.

Based on the foregoing, the Board initially finds the evidence does not support a finding that the Veteran's migraines, tinnitus, or hemorrhoids rendered him unable to obtain or maintain substantially gainful employment during the period on appeal. While VA examiners indicated the Veteran's migraines and tinnitus impact his ability to perform occupational tasks, none of the functional impacts described above rise to a level of severity to preclude the Veteran from working.

However, as of January 15, 2022, the Veteran's ability to secure or follow substantially gainful employment is significantly impacted by his PTSD symptoms.

Regarding the economic component discussed in Ray v. Wilkie, the Board finds that the Veteran was engaged in marginal employment when he moved to part-time work on January 15, 2022, because he was not earning more than the poverty threshold for one person for the year 2022. (https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html).

Regarding the non-economic component discussed in Ray v. Wilkie, the Board finds the Veteran's competent lay statements of his diminished memory and increased angry outbursts at customers are credible and probative. The Board also finds his wife's statements about the Veteran's substandard performance due to his fatigue, irritation, and lack of sleep credible and probative. The Board also notes she no longer had trust in him to make sound decisions. Additionally, the January 2021 VA examiner found the Veteran has difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including in a work like setting. Although these symptoms are not commensurate with a 100 percent rating for his PTSD, when taken together, the Board finds that they preclude the Veteran from securing or following a substantially gainful occupation consistent with his education, skills, training, and work history.

Ultimately, entitlement to TDIU is a legal
probative. The Board also finds his wife's statements about the Veteran's substandard performance due to his fatigue, irritation, and lack of sleep credible and probative. The Board also notes she no longer had trust in him to make sound decisions. Additionally, the January 2021 VA examiner found the Veteran has difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including in a work like setting. Although these symptoms are not commensurate with a 100 percent rating for his PTSD, when taken together, the Board finds that they preclude the Veteran from securing or following a substantially gainful occupation consistent with his education, skills, training, and work history.

Ultimately, entitlement to TDIU is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). While medical examiners may provide evidence regarding functional and occupational impairment, the Board must decide whether the Veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232 (2019). Here, the evidence shows the Veteran is unable to secure and follow a substantially gainful occupation due to his PTSD symptoms from January 15, 2022.

Prior to January 15, 2022, the Board finds that Veteran was engaged in more than marginal employment. Prior to this date, the Veteran inconsistently reported when he began working part-time. See February 2023 VA Form 21-8940; November 2021 Veteran's Statement; November 2021 Wife's Statement. Moreover, the Veteran also inconsistently reported beginning part-time work due to his service-connected disabilities or due to the COVID-19 Pandemic. See January 15, 2021, Treatment Note; November 2021 Veteran's Statement; November 2021 Wife's Statement. As the Veteran's reported income was well above the poverty threshold prior to January 15, 2022, as noted in his February 2023 VA Form 21-8940, and the record is inconsistent as to when the Veteran began part-time work and why. Conversely, from January 15, 2022, the record is consistent that the Veteran was engaged in marginal employment due to part-time work that paid well below the poverty threshold.

In finding that the Board's prior employment was more than marginal prior to January 15, 2022, the Board has considered the fact that the Veteran's employment was self-employed in a family business. However, the record reflects that the Veteran was doing well in this form of employment for several years, as noted on VA examinations in 2013 and 2018. His accommodation, which was primarily noted to be working at night, was not shielded in some respect from competition in the employment market. As noted above, the Veteran reported losing income and business from this position in 2020 and 2021 due to the COVID-19 pandemic and not due to service-connected disability. While the Veteran's and his spouses' statement document reflect some increased accomodation at some point in 2021, these were not submitted until May 2022 and it is unclear as to when these additional accommodations and/or reduced hours began. Accordingly, the Board finds that the evidence weighs against a finding of unemployability prior to January 15, 2022.

Therefore, entitlement to TDIU is granted from January 15, 2022, but no earlier, is granted.

2. Entitlement to SMC under 38 U.S.C. § 1114(s) from January 15, 2022, to September 7, 2022, is granted.

The Veteran also contends he is entitled to SMC(s). See December 2024 VA Form 20-0996.

VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); see also Bradley v. Peake, 22 Vet. App. 280 (2008). The duty to maximize benefits requires VA to assess all the Veteran's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. §1114. The Board notes that the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim. See Akles v. Derwinski, 1 Vet. App. 118 (1991).

According to 38 U.S.C. § 1114(s)(1), when a Veteran has a service-connected disability rated as total (100 percent) and has additional service-connected disability or disabilities independently ratable at 60 percent or more, they are entitled to SMC payable
280 (2008). The duty to maximize benefits requires VA to assess all the Veteran's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. §1114. The Board notes that the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim. See Akles v. Derwinski, 1 Vet. App. 118 (1991).

The Board finds that the Veteran met these requirements from January 15, 2022. He has been awarded a TDIU based solely on the symptoms of his PTSD, which is rated at 70 percent disabling from February 2, 2012, to September 7, 2022. He is also service connected for migraines rated at 50 percent from February 2, 2012, and tinnitus and hemorrhoids rated at 10 percent from November 2, 2020, with a combined rating of 60 percent from November 2, 2020. Therefore, he has additional disabilities independently ratable at more than 60 percent. 38 C.F.R. § 4.25. Accordingly, the Veteran is entitled to SMC under 38 U.S.C. §1114(s) from January 15, 2022, to September 7, 2022.

G. E. Wilkerson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Lopiano

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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