Case A26037427

R. CASADEI · 2026 · Case ID: A26037427

DENIED

Summary

The veteran, who served in the U.S. Army from March 1965 to April 1968, appeals the denial of entitlement to an earlier effective date for a Total Disability based on Individual Unemployability (TDIU) prior to January 1, 2021, on an extraschedular basis, and for Special Monthly Compensation (SMC) based on housebound criteria prior to January 1, 2021. The veteran's service-connected disabilities include residuals of a lumbar spine fracture (rated 20%), tinnitus (rated 10%), and bilateral hearing loss (non-compensable). The primary issue is TDIU, with the veteran claiming his back disability has prevented substantially gainful employment since approximately 2005. The Board reviewed the veteran's occupational history, education, and medical evidence. Contemporaneous VA treatment records from 2007 through 2020 showed intermittent back pain but also retained functional capacity, including activities like walking, building a garage, and exercising, which the Board found inconsistent with a preclusion from all substantially gainful employment. The Board noted the veteran's construction background, acknowledging limitations in strenuous labor but finding no evidence of inability to perform less physically demanding work. The Board also considered prior Board decisions and a Director's determination regarding TDIU, finding them consistent with the evidence that the veteran's disabilities did not render him unemployable. For SMC housebound, the Board found the veteran did not meet the criteria of a 100% disabling single condition or the combined rating thresholds prior to January 1, 2021. Therefore, entitlement to an earlier effective date for both TDIU and SMC housebound was denied.

Rationale

Contemporaneous VA treatment records showed retained functional capacity.; Veteran's occupational history and education did not preclude all substantially gainful employment.; Evidence did not establish inability to secure or follow substantially gainful employment.

Service Branch

ARMY

Special Benefit

SMC - HOUSEBOUND; TDIU; EARLIER EFFECTIVE DATE

Docket No.

260227-634264

Full Decision Text

Citation Nr: A26037427
Decision Date: 04/22/26 Archive Date: 04/22/26

DOCKET NO. 260227-634264
DATE: April 22, 2026

ORDER

An effective date for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 1, 2021, on an extraschedular basis, is denied.

An earlier effective date for the award of special monthly compensation based on statutory housebound criteria is denied.

FINDINGS OF FACT

1. Prior to January 1, 2021, the Veteran's service-connected disabilities did not prevent him from securing or following a substantially gainful occupation when considering level of education and employment history.

2. Prior to January 1, 2021, the Veteran did not have a single service-connected disability rated as 100 percent disabling and additional service-connected disabilities independently ratable as 60 percent disabling.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a TDIU due to service-connected disabilities prior to January 1, 2021, on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. 3.400, 4.16(b).

2. The criteria for entitlement to SMC based on statutory housebound criteria prior to January 1, 2021, have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from March 1965 to April 1968.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2026 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is an agency of original jurisdiction (AOJ). In that decision, the RO denied entitlement to an earlier effective date for a TDIU prior to January 1, 2021, on an extraschedular basis and also to an earlier effective date for SMC based on housebound criteria prior to January 1, 2021.

In the February 2026 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. The Veteran also waived his ability to request to switch AMA dockets pursuant to Williams v. McDonough, 37 Vet. App. 305 (2024). Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38?C.F.R. § 20.301. The Board cannot consider evidence submitted after the AOJ issued the February 2026 decision on appeal. Id.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claims on appeal. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file 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.

Although the February 2026 VA Form 10182 did not expressly identify entitlement to an earlier effective date for SMC based on housebound status as an issue on appeal, that matter remains before the Board as part of the same claim stream. The issue of SMC has been raised and addressed in prior Board decisions in connection with the Veteran's claim for a TDIU prior to January 1, 2021, and entitlement to SMC based on housebound status is a benefit that must be considered as part of a claim for increased rating where raised by the record. See 38 C.F.R. § 3.155(d)(2); Akles v. Derwinski, 1 Vet. App. 118 (1991).

1. Entitlement to an effective date for a TDIU prior to January 1, 2021, on an extraschedular basis

The Veteran contends that his service-connected back disability prior to January 1, 2021 has prevented him from securing or following substantially gainful employment since approximately 2005, when he
a TDIU prior to January 1, 2021, and entitlement to SMC based on housebound status is a benefit that must be considered as part of a claim for increased rating where raised by the record. See 38 C.F.R. § 3.155(d)(2); Akles v. Derwinski, 1 Vet. App. 118 (1991).

1. Entitlement to an effective date for a TDIU prior to January 1, 2021, on an extraschedular basis

As an initial matter, the Veteran has not asserted, and the evidence does not suggest, that his service-connected hearing loss or tinnitus, either alone or in combination with his back disability, rendered him unable to secure or follow substantially gainful employment during this period. In the May 2023 VA Form 8940, the Veteran only listed his back disability as the service-connected disability that prevents him from securing or following any substantially gainful occupation. In the July 2013 VA examination for hearing loss and tinnitus, the Veteran described the functional impact of his hearing loss as losing what others are saying and background noise interfering with his hearing, and for his tinnitus as him just putting up with it.

The procedural history of TDIU reflects that in a December 2023 decision, the Board dismissed TDIU as moot from April 25, 2021 to April 17, 2023, and denied entitlement to a TDIU prior to April 25, 2021. Subsequently, in a January 2024 decision, the Board granted an earlier effective date of December 16, 2021 for a TDIU. The Veteran subsequently appealed the December 2023 and January 2024 Board decisions to the United States Court of Appeals for Veterans Claims (Court). In the October 2024 Joint Motion, the parties agreed that the Board failed to address the Veteran's expressly made argument that a reasonably raised June 2006 TDIU claim remained pending and unadjudicated.

In the April 2025 decision, the Board granted an effective date of January 1, 2021, for a TDIU. However, the Board also found that TDIU was reasonably raised as part of the June 2006 claim for increased rating for the back, and the Board remanded the issue of TDIU prior to January 1, 2021 to obtain private treatment records identified by the Veteran as pertaining to the issue of TDIU dating back to the June 2006 claim for increased rating for the back. In July 2025, the Board again remanded the claim of TDIU prior to January 1, 2021, after making a finding that the Veteran's claim must be referred to the Director of Compensation Services for extraschedular consideration. In February 2026, the Director of Compensation Services issued a decision denying entitlement to a TDIU on an extraschedular basis prior to January 1, 2021. Following the denial by the Director of Compensation Services, the RO issued a February 2026 rating decision denying entitlement to a TDIU on an extraschedular basis prior to January 1, 2021. Subsequently in February 2026, the Veteran filed VA Form 10182 and appealed the February 2026 rating decision to the Board seeking entitlement to a TDIU on an extraschedular basis prior to January 1, 2021.

Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15.

In order to establish an inability to secure and maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. §
Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15.

In order to establish an inability to secure and maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a), a veteran is not required to submit proof that he or she is 100 percent unemployable. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). Instead, the regulations contemplate more flexibility in the employability determination. Id.

The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the veteran is able to pursue his or her profession of choice, or indeed any particular job. Rather, the determinative issue is whether the veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his or her service-connected disabilities, without regard to his or her advancing age, make him or her incapable of performing the acts required by employment. Id. Consideration may be given to the veteran's education, special training, and previous work experience, but not to the veteran's age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

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.

A "protected work environment" means "a lower-income position that due to the Veteran's service-connected disability or disabilities is shielded in some respect from competition in the employment market." Labruzza-McBride v. McDonough, 37 Vet. App. 111 (2024) (also holding, "We use the words 'in some respect' deliberately here to convey that employment need not be completely shielded or separated from the employment market to qualify as being in a protected environment."). On the other hand, the Court further held in Labruzza-McBride, that the purpose of TDIU" is best served by reserving TDIU for veterans whose service-connected disabilities preclude substantially gainful employment, not by awarding TDIU to veterans, even seriously disabled ones, who are capable of performing such employment." Id. Where a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (Concurring Opinion, Lance, J., "Where a claimant's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.").

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow
result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (Concurring Opinion, Lance, J., "Where a claimant's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.").

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he or she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a).

The Veteran's service-connected disabilities prior to January 1, 2021, consist of residuals of fracture to lumbar spine (back disability), rated as 20 percent disabling effective August 27, 1973; tinnitus, rated as 10 percent disabling effective April 29, 2013, and bilateral hearing loss, rated as noncompensable effective April 29, 2013.

However, even when the above threshold percentage requirements are not met prior to January 1, 2021, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38?C.F.R. § 4.16(b). In this case, the April 2025 Board decision made the finding that a claim for a TDIU was reasonably raised as part of the June 2006 claim for increased rating for the back. Accordingly, the Board will consider whether the Veteran's service-connected disabilities preclude substantially gainful employment during the entire period on appeal dating back to June 28, 2006, the date he filed a claim of increase for his service-connected back disability, to include the one-year look back period.

As an initial matter, the Board has considered the Veteran's reports that he stopped working in 2005 due to back pain. While the Veteran is competent to report his occupational history and observable symptoms, the question of whether those symptoms rose to the level of functional impairment that precluded substantially gainfully gainful employment is a factual determination informed by the overall record. Here, the contemporaneous medical evidence weighs against such a finding.

VA treatment records from 2007 through 2020 consistently reflect that, despite intermittent complaints of back pain, the Veteran retained significant functional capacity. In November 2007, he reported that he was actively building a garage at home, had poured a sidewalk, and walked his dog (daily) for a mile. In June 2008 and November 2009, he continued to report back pain but denied the need for pain medication and described the back functioning fairly well. By January 2011, he rated his back pain as a 2 out of 10, and a May 2011 physical therapy consultation noted that his lumbar spine range of motion was within functional limits.

Although the Veteran intermittently reported increased pain levels, including ratings of 3 out of 10 in October 2006, 3 out of 10 in September 2014, and higher levels such as 5 to 7 out of 10 in 2019 and 2020, these reports were accompanied by continued activity and do not reflect a disability picture of such severity as to preclude all forms of substantially gainful employment. Notably, in March 2015, he reported that he did not really have any pain, and in November 2015, he described his pain as controlled and declined medication. Even when reporting increased symptoms in 2019 and 2020, he indicated that he had been working out more recently, which reflects retained physical capability inconsistent with an inability to perform occupational tasks.

The October 2006 VA examination further reflects that, although the Veteran reported pain and stiffness and stated that he had stopped working two years earlier, he also reported that he walked one mile daily, had no incapacitating episodes in the prior 12 months, and had no difficulty with activities of daily living. Such findings are inconsistent with a level of impairment that would preclude substantially gainful employment, particularly in light of his educational background, which includes two years of college, and his extensive work history.

The Board has considered a July 2025 letter
reporting increased symptoms in 2019 and 2020, he indicated that he had been working out more recently, which reflects retained physical capability inconsistent with an inability to perform occupational tasks.

The Board has considered a July 2025 letter which recommended a TDIU prior to January 1, 2021. First, it is unclear who submitted the letter. Regardless, the letter raised a point that the Board previously found that the back disability interfered with the Veteran's ability to follow a substantially gainful employment prior to January 1, 2021. However, this determination is not the same as the finding required for a grant in a claim for TDIU, which requires that service-connected disabilities render a veteran unable to secure or follow substantially gainful employment. The previous finding of the Board that the back interfered with the Veteran's ability to follow a substantially gainful employment was made to remand the claim in order to refer extraschedular TDIU to the Director of Compensation Services on the finding that there is a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b); Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); Snider v. McDonough, 35 Vet. App. 1 (2021).

The Board has also considered the February 2026 Director's determination, which concluded that entitlement to TDIU on an extraschedular basis prior to January 1, 2021, was not warranted. While that determination is not binding on the Board, it is probative insofar as it reflects a review of the record and is consistent with the evidence showing that, although the Veteran's back disability resulted in some occupational limitations, particularly with respect to physically demanding labor, it did not render him unable to secure or follow substantially gainful employment. See 38 C.F.R. § 4.16(b); Wages v. McDonald, 27 Vet. App. 233 (2015).

The Board has also considered the Veteran's occupational history consists primarily of construction work, which is inherently physically demanding. However, the evidence does not establish that his service-connected back disability precluded all forms of substantially gainful employment consistent with his education and occupational experience. Although the record reflects that his back symptoms would have limited his ability to perform strenuous labor such as heavy construction, the evidence does not demonstrate that he was incapable of performing less physically demanding work. In this regard, the Veteran completed two years of college, and the medical evidence throughout the period on appeal does not suggest functional impairment of such severity as to preclude all physical or sedentary employment. Rather, as reflected by his reports of building a garage, pouring a sidewalk, and walking daily, and engaging in exercise, the Veteran retained the capacity to perform activities consistent with at least light or modified work. Accordingly, while his prior occupation in construction may no longer have been feasible, the evidence does not show that he was unable to secure or follow substantially gainful employment in other occupational settings.

In this regard, the record supports that the Veteran's back disability would have limited his ability to perform heavy construction work, which he previously performed. However, the inability to return to prior employment, standing alone, does not establish unemployability. Rather, the evidence reflects that the Veteran retained the physical and functional capacity to perform at least sedentary or light-duty work during the period on appeal. His demonstrated ability to engage in activities such as walking daily, performing home construction tasks, and exercising, along with generally mild to moderate pain levels and lack of consistent need for medication, weighs against a finding that he was precluded from all forms of substantially gainful employment.

Because the TDIU claim arises from the June 2006 increased rating claim for the back, the Board has also considered whether it was factually ascertainable that the Veteran was unable to secure to follow substantially gainful employment within the one-year period preceding that claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In this regard, although the Veteran reported that he stopped working in approximately 2005 following a back injury, the evidence from that period does not demonstrate that his
generally mild to moderate pain levels and lack of consistent need for medication, weighs against a finding that he was precluded from all forms of substantially gainful employment.

Because the TDIU claim arises from the June 2006 increased rating claim for the back, the Board has also considered whether it was factually ascertainable that the Veteran was unable to secure to follow substantially gainful employment within the one-year period preceding that claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In this regard, although the Veteran reported that he stopped working in approximately 2005 following a back injury, the evidence from that period does not demonstrate that his service-connected back disability, alone, rendered him incapable of substantially gainful employment. Rather, as discussed above, the overall disability picture, including low pain levels, absence of incapacitating episodes, lack of ongoing medication, and retained functional capacity, does not support a finding of unemployability during that period.

2. Entitlement to an earlier effective date for the award of SMC based on statutory housebound criteria

SMC at the housebound rate is payable by law where the veteran has a single service-connected disability rated as 100 percent disabling; and, has additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). SMC at the housebound rate is also warranted when a veteran has a single service-connected disability rated as 100 percent disabling and is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Housebound status is defined as being when the veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises and it is reasonably certain the disability or disabilities and resultant confinement will continue throughout his lifetime. Id.

Here, prior to January 1, 2021, the Veteran does not have a single service-connected disability rated as 100 percent disabling, to include a TDIU. Accordingly, the evidence persuasively weighs against assignment of an effective date prior to January 1, 2021, for the grant of SMC at the statutory housebound rate under 38 U.S.C. § 1114(s), and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

R. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rasul, H.

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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