Citation Nr: 1548144 Decision Date: 11/16/15 Archive Date: 11/25/15 DOCKET NO. 05-36 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1968 to April 1971 and from March 1974 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The initial claims on appeal were for increased ratings for diabetic neuropathy. The Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge in September 2009. Although the hearing did not specifically pertain to a claim for TDIU, some information in the hearing transcript is useful to this issue. A transcript of that proceeding has been associated with the claims file. In a July 2011 Joint Motion for Partial Remand (joint motion), the parties moved to "partially" vacate the Board decision regarding the ratings assigned for diabetic polyneuropathy. The claim for TDIU was last previously before the Board in May 2013, where the claim was remanded for additional development. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are: PTSD (70 percent from July 30, 2010), diabetic neuropathy, lower extremities (40 percent each), diabetes mellitus (20 percent), peripheral vascular disease of the left lower extremity (20 percent), left carpal tunnel (20 percent), left great toe amputation (10 percent), right carpal tunnel (10 percent), scar on the right chest wall (noncompensable), bilateral hearing loss (noncompensable), scar right wrist (noncompensable). 2. The Veteran has a high school education, and worked in the machinist and wrecker (tow-truck driving and dispatching) industries. 3. The Veteran has been unemployed since April 2007. 4. The Veteran's formal claim for TDIU was received in June 2011. He was granted service connection for posttraumatic stress disorder (PTSD) on July 30, 2010. 5. Resolving reasonable doubt in the Veteran's favor, the competent and credible evidence of record demonstrates that the Veteran's PTSD, alone and in regard to his education and work history, precluded him from securing or following substantially gainful occupation. 6. The Veteran's PTSD alone warrants a TDIU rating from July 30, 2010, and he has additional disabilities (independent of TDIU) ratable at 60 percent or more (combined 80 percent). CONCLUSIONS OF LAW 1. The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19 (2015). 2. The criteria for special monthly compensation based on one service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more (housebound rate) have been met. 38 U.S.C.A. § 1114(s), 5107, 5121; 38 C.F.R. § 3.350 (2015) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As this decision represents a complete grant of the benefit sought on appeal with regard to the TDIU issue, any deficiency in VA's compliance with the duty to notify and assist is nonprejudicial and any further discussion of VA's duties is not necessary. 38 C.F.R. § 20.1102 (2015). Laws and Regulations A TDIU may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that he is unable to maintain substantially gainful employment due to his service-connected disabilities, his claim for a total disability rating based on unemployability cannot be denied in the absence of medical evidence showing that he is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In the November 2009 decision, the Board referred the issue of TDIU for development, after the Veteran reported he was unemployed during his September 2009 hearing, in conjunction with his increased diabetic neuropathy claims (which were on appeal from 2005). In June 2011, the Veteran provided a formal claim for TDIU. He stated that he was disabled from working due to his diabetes, PTSD, neuropathy, high blood pressure and hearing loss. He reported working as a wrecker dispatcher and driver from 2003 to 2007. He stopped working in April 2007. He reported a high school education and no additional education or training. In a March 2012 rating decision, the RO granted entitlement to PTSD with an initial rating of 70 percent, effective July 30, 2010. The 70 percent rating for PTSD in addition to his already combined 80 percent rating for his other disabilities, resulted in a schedular 100 percent rating from July 30, 2010. The RO found, in the March 2012 rating decision, that the issue of TDIU was moot due to the schedular 100 percent rating. However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). In Bradley, the Veteran had been in receipt of TDIU until the time at which he was awarded a 100 percent combined schedular rating. See, Bradley, 22 Vet. App. at 293. The Court determined, however, that "the Secretary should have assessed whether [the Veteran's] TDIU rating was warranted based on his PTSD alone before substituting a combined total rating for his TDIU rating." Id. at 294. The Court reasoned that "a TDIU rating for PTSD alone would entitle [the Veteran] to SMC benefits as an additional benefit not otherwise provided to persons with a 100 [percent] combined rating." Id. Accordingly, under Bradley, VA should potentially consider whether TDIU is warranted for a particular service-connected disability even when a schedular 100-percent rating is already in effect for other service-connected disabilities in order to determine the veteran's eligibility for SMC under section 1114(s). Id. A TDIU rating based upon multiple disabilities does not meet the requirement of a single disability requirement of 38 U.S.C.A. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010). First, the Board notes that in a March 2014 rating decision, the RO granted a temporary 100 percent evaluation based on convalescence from January 3, 2014 to March 1, 2014 for right carpal tunnel syndrome. As such, the Veteran was granted special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) for the period from January 3, 2014 to March 1, 2014. The Board initially notes that this grant of SMC under 38 U.S.C.A. § 1114(s) should have been granted for the period from July 30, 2010 to September 1, 2010 due to an additional temporary total rating for convalescence. The Veteran is not in receipt of SMC under 38 U.S.C.A. § 1114(s) except for this period in 2014. Thus, if it is determined that the Veteran is entitled to TDIU based on his PTSD alone, he is potentially eligible to SMC under 38 U.S.C.A. § 1114(s) Regarding whether the Veteran's PTSD alone rendered him unemployable, the Board notes that his 70 percent rating effective July 30, 2010 meets the schedular requirement for TDIU under 38 C.F.R. § 4.16(a). During his September 2009 Board hearing, the Veteran was providing testimony based on the severity of his diabetic neuropathy. He reported that he was no longer employed due to his feet and legs initially. He was not allowed to drive due to his diabetic neuropathy, as the tow company's insurance company would not keep him on as a driver. However, when explaining why he could not continue to work as a dispatch operator for the tow company, the Veteran stated that he needed breaks for his feet, but that it was also a "high pressure job and they won't want, you know, someone like myself in that position." An April 2008 statement from the Veteran's prior employer noted that the Veteran used to be a wrecker driver until he was unable to operate a truck safely due to his feet and legs. They moved the Veteran to a sedentary job as a dispatch operator, but the employer noted that "his memory is not what it used to be and he is showing signs of stress dealing with wrecker drivers and the public. His hands are shaking and he cannot function under stress." A January 2011 VA fee basis examination noted that the Veteran's PTSD caused sleep impairment, panic-like anxiety, irritability with angry outbursts, difficulty concentrating, hypervigilance and an exaggerated startle response. He stated that he had never hit anyone, but that he had punched a wall "many times" during angry outbursts. Signs of his depression included concentration problems, diminished energy, and insomnia. He also described impaired impulse control related to gambling, and alcohol and marijuana use. He was noted to have been a tow truck driver from 1992. He was fired from one job due to continued conflicts with the owner. He stopped working in April 2007 after the company he worked for was sold to another company, and they were aware of his disabilities. He stated that since that time, no one has wanted to hire him. The examiner found that the Veteran's then-current unemployment was not related to his psychiatric illness. A September 2011 VA examination, in contrast, noted the Veteran had flashbacks, intrusive thoughts, difficulty sleeping, problems concentrating, difficulties with his memory, irritability anger, and difficulty trusting people, among other symptoms of PTSD. He reported difficulty controlling his anger, irritability and difficulty getting along with people. The examiner found that the Veteran's PTSD symptoms "weakened" his productivity, and he was detached from people. His "irritability and spontaneous rage make him more socially isolated. He deliberately keeps away from people in order to avoid confrontations because he is easily provoked. The [Veteran] is severely impaired from maintaining or gaining employment." The examiner found that the Veteran had difficulty establishing and maintaining effective work and social relationships because he does not communicate with others. He had difficulty completing tasks due to added stress and irritation. Notably, in his treatment records the Veteran reported he had not seen his family since 1968. He reported not friends and limited social interaction, choosing to isolate. The Veteran worked for tow companies from 1992 to 20007, which necessitated interacting with coworkers (dispatch to driver, and employee to employer) and the public (both as dispatch and driver). Given his education and work history, the Veteran was unlikely to find employment that did not involve interacting with the public or coworkers. The Veteran's PTSD did not meet the criteria for a schedular 100 percent rating during the period on appeal, as he did not experience symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others (although the Veteran's angry outburst including punching walls, he was able to refrain from ever hitting a person); disorientation to time or place, or memory loss for own name, occupation or names of close relatives. The Veteran's memory impairment and decreased concentration did not rise to the level of memory loss described in the total PTSD rating. Nevertheless, resolving reasonable doubt in the Veteran's favor, since his PTSD met the severity of a 70 percent rating, and the September 2011 VA examiner found that his PTSD would severely limit his employability, the Board finds that entitlement to TDIU for PTSD alone is warranted. As such, the Veteran had a single disability (PTSD) rated at 100 percent (TDIU) with additional disabilities rated at 60 percent or more (combined 80 percent) involving different anatomical segments or bodily systems, effective July 30, 2010. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i); see Bradley v. Peake, 22 Vet. App. 280 (2008). The grant of TDIU based on a single disability can satisfy the "single disability rated at 100 percent" requirement under the SMC rate for "total plus 60 percent" or the "housebound" rate of SMC. A veteran is entitled to SMC when the veteran has "a service-connected disability rated as total" and a separate disability or disabilities rated at 60% or higher. 38 U.S.C. § 1114(s). Therefore, with the grant of TDIU based on PTSD alone, the Veteran is entitled to SMC at the "housebound" rate under 38 U.S.C.A. § 1114(s). As the RO has previously addressed the issues of SMC, the Board has jurisdiction to determine that it is warranted in this case. ORDER Entitlement to TDIU is granted from July 30, 2010. Entitlement to SMC, at the "housebound" rate, is granted from July 30, 2010. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs