Prior to July 31, 2013, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.
Prior to July 31, 2013, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.
Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels.
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Citation Nr: 21005168 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 10-44 480 DATE: January 29, 2021 ORDER Prior to July 31, 2013, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. As of July 31, 2013, but no earlier, a TDIU due solely to service-connected depression is granted, subject to the laws and regulations governing the payment of monetary benefits. As of July 31, 2013, but no earlier, special monthly compensation (SMC) at the housebound rate is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to July 31, 2013, the Veteran was substantially gainfully employed. 2. From July 31, 2013, the Veteran’s service-connected depression prevented him from securing and following a substantially gainful occupation. 3. From July 31, 2013, the Veteran has additional service-connected disabilities separate and distinct from depression that have a combined 60 percent rating. CONCLUSIONS OF LAW 1. Prior to July 31, 2013, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. 2. From July 31, 2013, the criteria for a TDIU due to service-connected depression have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. 3. From July 31, 2013, the criteria for SMC at the housebound rate have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from January 1975 to May 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Oakland, California which assigned an increased 40 percent rating for the Veteran’s service-connected lumbosacral strain with degenerative changes from November 24, 2008, the date of receipt of his claim for an increased rating. The Veteran’s claim of entitlement to TDIU originated as part and parcel of his claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2016, the case was remanded to provide the Veteran with a hearing before a Veterans Law Judge. In March 2017, the Veteran testified before the undersigned at a Video Conference Hearing; a copy of the transcript is associated with the record. The case was remanded for additional development in August 2017. In June 2018, the Board denied a rating in excess of 40 percent for lumbosacral strain with degenerative changes, to include TDIU, and a rating in excess of 10 percent prior to June 28, 2012 and 20 percent from that date for radiculopathy of the right lower extremity and granted a 10 percent rating for radiculopathy of the left lower extremity from the earlier effective date of April 10, 2012. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2018 Order, the Court vacated the June 2018 Board decision and remanded the matter of entitlement to a TDIU rating for readjudication consistent with the instructions in a Joint Motion for Partial Remand (JMPR). The Order dismissed the appeal as to the remaining issues. In July 2019, the Board again denied entitlement to a TDIU. The Veteran appealed this decision to the Court. In February 2020, the Court issued an order remanding the July 2019 Board decision for action consistent with the instructions outlined in the February 2020 Joint Motion for Remand (JMR) by the parties. See Pederson v. McDonald, 27 Vet. App. 276 (2015) (arguments not raised on appeal to the Court are considered to be abandoned); Cacciola v. Gibson, 27 Vet. App. 45 (2014) (holding that when an appellant expressly abandons an appealed issue or declines to present arguments as to that issue, the appellant relinquishes the right to judicial review of that issue). Specifically, in the JMR, the parties note that an April 2013 medical opinion indicates the Veteran’s service-connected psychiatric disability causes total occupational and social impairment and this evidence suggests that the psychiatric disability alone may render the Veteran unable to secure and maintain substantially gainful employment. The JMR noted the Board provided no discussion of the “reasonably raised issue” of whether the Veteran would be entitled to SMC based on the effects of his psychiatric disability alone and his other-than-psychiatric disabilities which combine to at least 60 percent. Review of the Veteran’s claims file shows evidence has been added to the record that was not previously considered by the RO. Specifically, attached to his July 2020 correspondence, the Veteran submitted an August 2019 statement from the Chief Technologist, Radiology Services, where he had worked, and a May 2020 statement from his treating VA psychologist. In November 2020 correspondence, the Veteran waived his right to have his case remanded to the AOJ for review of the additional evidence submitted in his appeal. TDIU This appeal arises from the Veteran’s November 24, 2008 claim for an increased rating of his service-connected low back disability. Pursuant to the February 2020 JMR, the appeal has been remanded for consideration of “the reasonably raised issue” of whether the Veteran’s depression might give rise to TDIU, so as to warrant entitlement to SMC. The Veteran’s service-connected disabilities are rated as a combined 100 percent disabling from June 28, 2012. He was employed full-time until July 31, 2013, when he retired. Although the Veteran has been evaluated at a combined 100 percent from June 28, 2012, the matter of TDIU is not moot because a TDIU based on a single service-connected disability alone may result in additional benefits (i.e., SMC), even if a 100 percent combined schedular evaluation is in effect. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010) (A TDIU based on a single service-connected disability alone may result in additional benefits (i.e., SMC), even if a 100 percent schedular evaluation is in effect.) Notably, however, unlike 38 C.F.R. § 4.16(a), when determining whether the Veteran has independently ratable and distinct disabilities for purposes of SMC, the question of whether such disabilities arose from a common etiology is not relevant. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). For these reasons, Board must consider whether the Veteran has a single service-connected disability which precluded employment during the appeal period. Since the Veteran’s November 24, 2008 claim for an increased rating, service connection has been in effect for depression, lumbosacral strain, sinusitis, right and left lower extremity radiculopathy associated with lumbosacral strain, post-operative right inguinal hernia, tinnitus, bilateral pes planus, status post rhinoplasty and septum repair for nasal trauma with obstruction, bilateral hearing loss, right rib cage scar and erectile dysfunction. The Veteran has argued that his lumbosacral spine has precluded him from engaging in substantially gainful employment. In addition, pursuant to the JMR, the Board must also consider “the reasonably raised issue” of whether the Veteran’s depression might give rise to TDIU. It is not claimed (or suggested by the record) that, other than depression and lumbosacral strain, any of the Veteran’s remaining service-connected disabilities, alone, prevent substantially gainful employment. Accordingly, the discussion herein will focus on whether the Veteran’s service-connected lumbosacral strain or depression, alone, give rise to TDIU. Prior to July 31, 2013 The Veteran’s lumbosacral strain with degenerative changes is rated as 40 percent disabling for the entire appeal period; the additional neurological ratings reveal that the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) were not met until June 28, 2012, as the Veteran’s lumbar spine disability in combination is rated as 60 percent from that date. Even when the criteria under 38 C.F.R. § 4.16(a) were not met (prior to June 28, 2012), entitlement to a TDIU on an extraschedular basis may be referred for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran’s depression has been rated 70 percent disabling since October 13, 2011, the effective date of the grant of service connection for this disability. As such, the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) based on depression have been met from October 13, 2011, the date of service connection for this disability. In this regard, the Court has held that the effective date of an award of TDIU cannot be earlier than the effective date of the award of service connection for the disability or disabilities on which the award of TDIU is based. See Delrio v. Wilkie, 32 Vet. App. 232, 236 (2019). Thus, TDIU based on depression alone is not permissible prior to October 13, 2011, the date of service connection for this disability. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Substantially gainful employment does not include marginal employment, which is generally deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis, including but not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); see also Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) (“[T]he only logical reading of the regulation compels the conclusion that a veteran might be found unable to secure or follow a substantially gainful occupation when the evidence demonstrates that he or she cannot secure or follow an occupation capable of producing income that is more than marginal-i.e., with income that exceeds the amount published by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.”). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the veteran’s earned annual income. More recently, the Court clarified that the establishment of a TDIU has both an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, 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, 396 (2017) (Lance, J., concurring) (“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.”). The Board acknowledges that the Secretary, as of this decision, has not defined “protected environment.” See MERRIAM-WEBSTER, accessed at https://www.merriam-webster.com/dictionary/protect (defining “protect” primary as “to cover or shield from exposure, injury, damage, or destruction”); see also MERRIAM-WEBSTER, accessed at https://www.merriam-webster.com/dictionary/environment (defining “environment” primarily as “the circumstances, objects, or conditions by which one is surrounded”). Therefore, it is at the Board’s discretion on a case-by-case basis based on the information and evidence of record. The Veteran claims entitlement to TDIU based on sheltered or protected employment. An argument that an employer’s provision of accommodations to a disabled employee necessarily brings that employment relationship within the definition of “employment in a protected environment” for the purpose of 38 C.F.R. § 4.16(a) is the overly broad definition offered by the claimant in Cantrell and ultimately rejected by the Court. See Cantrell, 28 Vet. App. at 392. In other words, the mere provision of accommodations is not dispositive, rather, the Board must look to the reasons accommodations were provided in a specific case. As discussed below, the evidence in this case clearly reflects that the Veteran was retained despite the need for accommodations because of his value to his employer rather than for altruistic reasons. The Veteran claims that he was able to remain employed because of “accommodations” made by his employer (hiring of an assistant to perform the physical aspects of his job, flexible work schedule, being allowed to rest/sleep at work and no disciplinary action during unproductive periods of the work day) or “sheltered” employment. It is the Veteran’s contention that because his employer “understands” and has made accommodations for his back disability, it should be considered sheltered employment (without the “sheltered employment status” he would not be working). See, e.g., January 2009 employer statement, noting the Veteran had used 193.5 hours of sick leave from 2007 to 2008 due to his back problems and had been provided with an additional staff during his shift to assist him with lifting and positioning of patients; April 2013 peripheral nerves examination report noting the Veteran “has been able to work as a senior MRI technician and instructor at [a medical facility], but with considerable latitude in restriction on any heavy lifting or persistent weight bearing activity;” June 2013 medical statement noting that “[w]ork modification has been recommended to ensure that [the Veteran] is able to avoid repetitive heavy lifting, repetitive loading, and prolonged sitting that exacerbates symptoms;” March 2017 Board hearing transcript and May 2017 employer statement, noting the Veteran’s work shift was changed in 2004 until his retirement in 2013 from 8 hour days 5 days per week to 10 hour days 4 days per week to prevent further aggravation of his service-connected disability by lessening his long commute times, this option for work shift hours was eliminated after the Veteran’s retirement. The record also includes a February 2009 VA spine examination report which notes the Veteran was “in a supervisors position, which requires a minimum of physical exertion.” An April 2013 Mental Disorders Disability Benefits Questionnaire (DBQ) completed by the Veteran’s VA treating psychologist, M.C., Ph.D., (Dr. C) indicates the Veteran’s service-connected psychiatric disability causes total occupational and social impairment. In the remarks portion of this DBQ, Dr. C explained that the Veteran’s “depression is severe and impairs his ability to sustain gainful employment.” [Emphasis added] As such, although the Veteran’s depression caused impairment in employment (as reflected by the 70 percent rating then in effect for this disability), this statement does not indicate that the Veteran’s depression precluded employment prior to July 31, 2013. Moreover, in a more recent May 2020 statement, Dr. C opined that the Veteran’s depression “ultimately led him to stop working as of July 31, 2013.” During his March 2017 Board hearing, the Veteran has also testified that it was his cardiologist who recommended accommodations at work to reduce stress on his heart (a non-service-connected disability). An April 2017 statement from C. N. Bash, M.D., includes the opinion that “due to IVDS of his lumbar spine and/or his MDD, singly or combined, [the Veteran] would not have been able to secure or follow a substantial gainful employment requiring exertional and or non-exertional activity if not for the permanent and extraordinary accommodations provided to him by his employer.” (emphasis in original). Because of the equivocal nature of this opinion and the absence of an explanation of rationale, it is of little probative value. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In his September 2017 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Application) the Veteran claimed his service-connected lumbar spine IVDS (intervertebral disc syndrome), MDDS (major depressive disorder) and bilateral lower extremity radiculopathy prevented him from securing or following any substantially gainful occupation (i.e., his inability to secure and follow substantially gainful employment was not the result of his service-connected back disability, alone). He completed four years of college as well as graduate studies in health care administration. The Veteran reported working as a magnetic resonance imaging (MRI) technician at a large medical facility throughout the appeal period (since 1983) until his retirement in July 2013 and his highest gross earnings were over $7,000 per month ($86,000 per year) in 2013. In a September 2017 Personal Narrative (based on 30 years employment with his employer, 26 years as MRI Lead Tech), the Veteran recalled that, because the number of MRI techs in his part of the country was very small, he had received numerous attractive offers to leave his employer. However, aware of this, the radiology department promoted him by creating the first Lead Tech position in the department (the Veteran recalled that he stayed with his employer because job satisfaction and a feeling of being needed and important prevailed over attractive financial offers.) He recalled undergoing coronary heart by-pass surgery in 2001 and stated that he believed the disease was caused by stress induced by chronic (back) pain and family history. The September 2017 Personal Narrative notes that the Veteran’s initial request for shift change was met with resistance including because he was told his “absence would compromise the operation and mission of the Radiology/MRI service since [he] was the only tech that could perform such complex or difficult cases” (other reasons were the need to hire a per-diem tech to help and cover the Veteran’s shift, granting request might cause a union or discrimination lawsuit and might cause employee morale or union issues). The Veteran requested reconsideration of his shift change request on the basis of his unblemished work record since 1983 (21 years of outstanding performance), his loyalty to his employer despite numerous attractive financial offers and “as a sign of goodwill” to him as a disabled veteran. Basically, he asked for reconsideration of his request “as an outstanding loyal employee who contributed so much for [his employer] prior to the increased severity of his lumbar pain” and as a disabled veteran. His shift change request was granted and the administrator told him he had “paid” his dues. The September 2017 Personal Narrative further notes that, with increasing severity of his back disability, discussions with the Veteran’s employer concluded in the decision to hire another staff solely to do the physical (lifting) requirements of his job; thereby, resulting in the Veteran’s decision not to quit. Nevertheless, he stated that his job was “complicated and challenging” after implementation of the shift change and removing him from performing the physical aspects of his job because of his mood disorder diagnosed in 2008, chronic lumbar pain, right leg radiculopathy and the effects of medications which adversely affected his behavior and attitude at work (the Veteran identified mental health related symptoms, such as changed attitude and demeanor, reduced tolerance and patience, being more argumentative, avoidance, diminished concentration, lack of attention and pain from prolonged sitting). In addition, because his “dedication and professionalism was unquestionable,” the Veteran was able to make administrators understand why he slept in his car and they recommended he use some of the available unused rooms in radiology to sleep (to avoid getting in trouble with hospital police for sleeping in the garage). He was told not to worry and to take care of himself. In the September 2017 Personal Narrative, the Veteran stated that, as the hired additional staff took over more of the Veteran’s job, he felt his presence at work became more insignificant and less noticed and management let him come to work late and leave early without charging him sick or annual leave. The Veteran recalled he became unproductive with no disciplinary action and was granted unconditional and unlimited “privileges.” He stated he could have worked forever because he was under no pressure to retire or file for medical disability; the “treatment was one of just true compassion” extended to him as a fellow co-worker who was productive for 25 years and only became unproductive and unemployable during the last 5 years of his 30 years of medical service.” The Veteran concluded that he would not have qualified or been able to work anywhere else if not for the protected environment extended to him because of his physical and mental disabilities. He stated that, although he still needed the money, he retired voluntarily because his “continued employment became disruptive and detrimental to the interest and effective operation of the” radiology department (the “extraordinary ‘protection’ from [his] job did not mean permission for [him] to abuse the ‘goodness’ of [his] employer”), he had become unproductive (the position should be vacated for a deserving young employee) and as a sign of “gratitude” for “5 years of permanent, unconditional and extraordinary ‘protection’ extended to keep [him] employed.” This Personal Narrative does not reflect the contention that his service-connected low back disability or depression, alone, prevented the Veteran from securing and following gainful employment outside the self-described protected/sheltered environment. On October 2017 VA back examination, the examiner noted that, while working as an MRI technician, the Veteran had “required modifications to avoid heavy repetitive lifting and prolonged sitting, lifting or bending.” In a June 2019 statement, the Veteran clarified that his cardiologist recommended a change in his work shift to avoid stress to his heart from pain due to prolonged sitting because of his service-connected lumbar spine disability during the long commute to and from work. He also referred to treatment records which noted “flare” of low back pain everyday with driving, driving for 1 hour was “very painful” and back pain with prolonged sitting, standing or walking. Further, the Veteran stated that he was claiming TDIU “based on his disabilities,” work accommodations and modifications, medical findings and recommendations and the opinion of Dr. Bash. Significantly, he did not contend that his service-connected low back or depression, alone, prevented him from securing and following gainful employment outside the protected/sheltered environment. In a May 2020 statement, Dr. C indicated that the Veteran’s depressive symptoms “ultimately led him to stop working as of July 31, 2013.” Dr. C explained that “[t]he only way [the Veteran] was able to work was that his employer reduced his hours, curtailed his responsibilities, limited his interactions with patients and other employees, and shifted staffing to compensate for his absences and his impaired functioning.” In July 2020 the Veteran also submitted a document providing the job description for MRI Technologist and an August 2019 statement from the Chief Technologist, Radiology Service, of his former employer, which notes that “[t]he Lead MRI Technician job description is a non-supervisory position,” the Veteran had been a MRI Lead Tech and “he did not work or perform his job in any supervisory capacity.” In a July 2020 personal statement, the Veteran provided additional historical background to explain the supportive relationships with his co-workers. He also submitted an excerpt from his employer’s Handbook providing guidance for processing requests for reasonable accommodations with additional discussion of how the provisions were applied to him. Significantly, a notable provision (1.h.) of this guidance states that “[o]nly those persons who demonstrate that they are physically, cognitively and emotionally capable of performing the essential functions of their position [without risk to self or other] are to be employed and retained by [the employer].” As such, implicit in providing the reasonable accommodations to the Veteran, is the determination that he was “physically, cognitively and emotionally capable of performing the essential functions of [his] position.” In this statement, the Veteran characterized his accommodations as having been granted as “good gestures” out of “courtesy” based on his “close personal and professional relationships” with his supervisors. After careful review of the extensive record, (including the October 2017 VA examination report noting the Veteran’s back disability impacted his ability to work because modifications to avoid heavy repetitive lifting and prolonged sitting, lifting or bending were required; the letters from his employer in January 2009, noting hours of sick leave used and that he had been provided with an additional staff to assist with lifting and positioning patients, and May 2017, noting his changed work shift to prevent further aggravation of his service-connected disability by lessening his long commute times; and the May 2020 statement from Dr. C describing the accommodations by the Veteran’s employer as the “only way” the Veteran was able to work) the Board does not find that a TDIU is warranted prior to the Veteran’s July 31, 2013 retirement from his employment as Lead MRI Technician at the medical facility. Although the Veteran was employed with accommodations prior to his retirement, the Board finds that such employment constitutes neither marginal employment nor employment in a protected environment. Prior to his July 31, 2013 retirement, the Veteran was employed as Lead MRI Technician at a large medical facility (a facility required by law to provide reasonable accommodations to qualified employees with disability), where he had worked since 1983 (30 years) and reported his highest gross earnings as $86,000 in 2013. It is acknowledged that the Veteran was afforded accommodations during this time, including a change in his work shift and an additional staff to assist with the physical demands of his job as reported by his employer and being permitted to sleep/take long breaks as described by the Veteran in his September 2017 and July 2020 personal statements. However, although statements in support of the Veteran’s claim have characterized these accommodations as “extraordinary” and “good gestures” out of “courtesy” based on his “close personal and professional relationships” with his supervisors, there is no indication in the record that these accommodations were beyond those that would be required by law. Rather, the Veteran’s educational attainment and lengthy record of full-time employment demonstrated that he was capable of maintaining a full-time job and earning income well above the poverty level for an individual despite his disabilities. The mere fact that the Veteran had been afforded accommodations for his disabilities does not mean he was engaged in marginal employment or employment in a protected environment. In this regard, it is noted that employment in a protected workshop and employment in a family business share a therapeutic or charitable purpose. While family businesses and sheltered workshops often involve employment accommodations, the presence of such accommodations is not the only similarity between the two and is not even a necessary characteristic for employment in a family business. See Cantrell, 28 Vet. App. at 390. In applying this principal to the Veteran’s claim, the Board finds that his employment as Lead MRI Technician at a large medical facility is not “employment in a protected environment” because there is no evidence to show the purpose of this position is to hire people with disabilities to train or rehabilitate them. Rather, although the position of Lead MRI Technician is not consistently described in the record as a supervisory position, as described by the Veteran, it is a highly skilled position. The record shows that, while accommodations were made by the Veteran’s employer, they were made to retain a highly skilled and valued employee with many years of experience. Although the Veteran has argued that the accommodations were made as “good gestures” and out of “courtesy” based on his “close personal and professional relationships” with his supervisors; he has also stated that his request for shift change was initially met with resistance including because his “absence would compromise the operation and mission of the Radiology/MRI service since [he] was the only tech that could perform such complex or difficult cases” and, when it was granted after he requested reconsideration on the basis of his 21 years of loyal unblemished employment, he was told he had “paid” his dues (i.e., earned it.) In addition, another staff was hired to perform the physical requirements of his job so as to keep him from quitting. These records show the Veteran was not employed for a charitable or therapeutic purpose; rather, he was a valued employee based on the depth (he was a senior MRI technician and instructor) and breadth (he had been working in the position for 21 years when he initially requested accommodation) of his experience. Although the Veteran has reported being permitted to sleep in unused radiology rooms, eventually becoming unproductive with no disciplinary action and being granted unconditional and unlimited “privileges;” such assertions are not supported by the record, including statements from his employer. Nevertheless, to the extent that he was allowed to sleep and work less than his full workday without disciplinary action, the Board finds his employment was not marginal. Finding otherwise would conflict with the Court’s decision in Faust: “[T]he Court holds that where, as in this case, the veteran became employed, as shown by clear and convincing evidence, at a substantially gainful occupation- i.e., one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income prior to his having been awarded a 100% rating based on individual unemployability- such employment constitutes, as a matter of law, a substantially gainful occupation.....” See Faust v. West, 13 Vet. App. 342, 350 (2000). As explained above, the matter of TDIU on appeal in this case is limited to the question of whether the Veteran’s lumbosacral strain with degenerative changes or depression, alone, precluded employment. Although in his June 2019 statement, the Veteran clarified that his cardiologist had recommended a change in his work shift to avoid stress due to pain because of his lumbar spine disability (thus, TDIU is warranted based on his lumbar spine disability, alone); in this same statement, the Veteran also asserted that he was entitled to TDIU “because of his physical and or mental service connected disability/ies.” Also as described above, earlier statements and testimony from the Veteran attribute his accommodations (and retirement) to a combination of multiple physical and psychiatric disabilities, both service-connected and nonservice-connected. As such, the assertion that TDIU prior to July 31, 2013 is warranted based on the Veteran’s low back or psychiatric disability, alone, is inconsistent and lacks credibility. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Prior to his July 31, 2013 retirement, the record shows the Veteran was treated for atherosclerotic heart disease and had undergone coronary artery bypass grafting (the Veteran is not service connected for a heart disability). Given this evidence, the Board finds that the preponderance of the evidence is against a finding that, prior to July 31, 2013, the Veteran’s service-connected lumbosacral strain with degenerative changes or depression, alone, prevented him from securing and maintaining an occupation in which he had the experience and the educational background to perform. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, awarding a TDIU prior to July 31, 2013 would not serve its intended purpose as the Veteran was able to maintain gainful full-time employment for 30 years prior to his July 2013 retirement, despite the severity of his service-connected disabilities, including his lumbosacral strain with degenerative changes, related neurological issues and depression. As discussed in Cantrell, the Veteran’s disabilities did not result in lost income and legally required accommodations permitted him to maintain gainful employment. Therefore, entitlement to TDIU prior to July 31, 2013 shall be denied because it would not serve the purpose intended by Congress. See 38 U.S.C. § 1155 (“The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.”). For these reasons, the Board finds that, prior to July 31, 2013, the Veteran was not rendered unable to secure and follow a substantially gainful occupation by reason of his service-connected lumbosacral strain with degenerative changes (and related lower extremity neurological disability) or depression, alone. Referral for consideration of entitlement to a TDIU on an extraschedular basis is not warranted for that part of the appeal when the lumbosacral disability did not meet the schedular requirements. 38 C.F.R. § 4.16 (b). From July 31, 2013 Pursuant to the February 2020 JMR granted by the Court, the Board is instructed to consider “the reasonably raised issue” of whether the Veteran’s depression might give rise to TDIU, so as to warrant entitlement to SMC. The JMR refers to the April 2013 DBQ completed by Dr. C which indicates the Veteran’s service-connected psychiatric disability causes total occupational and social impairment. As noted above, in the remarks portion of this DBQ, Dr. C explained that the Veteran’s “depression is severe and impairs his ability to sustain gainful employment.” [Emphasis added] In a subsequent, July 2020 statement, Dr. C noted that the Veteran’s depressive symptoms have “been present since 2011, impaired his ability to sustain gainful employment, and ultimately led him to stop working as of July 31, 2013.” Given the severity the Veteran’s symptoms and functional impairment, Dr. C concluded the Veteran “is incapable of maintaining gainful employment; he is 100% disabled and unemployable due to his service-connected Major Depressive Disorder.” Upon consideration of the opinions from Dr. C (that the Veteran’s depressive symptoms impaired his ability to sustain gainful employment, “ultimately led him to stop working as of July 31, 2013” and “he is 100% disabled and unemployable due to his service-connected Major Depressive Disorder”), and after resolving reasonable doubt in favor of the Veteran, the Board finds entitlement to a TDIU due to service-connected depression is warranted from July 31, 2013. SMC VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). SMC is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The total disability rating requirement may be met by a finding of a TDIU where that award is based on one single condition. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). In light of the decision above, from July 31, 2013, onward, the Veteran will be in receipt of a total disability rating for his depression, alone. The Veteran has other compensable service-connected disabilities, including lumbosacral strain (20 percent prior to November 24, 2008 and 40 percent from that date), sinusitis (30 percent), right (10 percent prior to June 28, 2012 and 20 percent from that date) and left (10 percent) lower extremity radiculopathy associated with lumbosacral strain, post-operative right inguinal hernia (10 percent), tinnitus (10 percent), bilateral pes planus (10 percent), status post rhinoplasty and septum repair for nasal trauma with obstruction (10 percent) (as well as noncompensable ratings for service-connected bilateral hearing loss, right rib cage scar and erectile dysfunction.) The combined disability rating for the period from July 31, 2013, excluding depression, is at least 60 percent. 38 C.F.R. § 4.25. Accordingly, as of July 31, 2013, the Veteran is in receipt of an TDIU (total rating) based solely on his depression and of at least an additional 60 percent rating for other service-connected disabilities. As such, from July 31, 2013, the criteria for SMC at the housebound rate under 38 U.S.C. § 1114(s) have been met. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hughes, Kshama 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.