Citation Nr: 18149072 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-38 147 DATE: November 8, 2018 ORDER 1. The appeal concerning the issue of entitlement to service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD) with major depressive disorder, claimed as chronic pain disorder, panic disorder with agoraphobia, adjustment disorder with mixed features, and severe anxiety, is dismissed. 2. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, in October 2017 correspondence, the Veteran’s representative notified the Board that the Veteran wished to withdraw her appeal concerning the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD with major depressive disorder. 2. The Veteran’s service-connected PTSD preclude her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD and major depressive disorder, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1976 to January 1979, from April 1983 to July 1983, and from September 2004 to December 2005. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2017, the Board remanded this appeal for further development. Significantly, the Veteran’s claim of entitlement to a TDIU is rendered moot effective August 19, 2016 by her assignment of a 100 percent disability rating for PTSD. The Board is cognizant that the assignment of a total schedular rating does not categorically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). (VA must consider a TDIU claim despite the existence of a schedular total rating and award special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) (2012) if VA finds a separate disability supports a TDIU independent of the disability with a 100 percent rating). SMC is payable at the housebound rate where a veteran has a single service-connected disability rated as 100-percent disabling and, in addition, (1) has a 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) (2015). The Veteran’s total schedular rating is based upon her PTSD, which is her sole service-connected disability. As the Veteran has no additional service-connected disabilities, she does not meet the threshold for an award of SMC and it is not possible that a TDIU could be granted for another service-connected disability. Moreover, any grant of TDIU based upon her PTSD rated as 100 percent disabling would constitute impermissible “duplicate counting of disabilities.” See Bradley, 22 Vet. App. 280. Therefore, as the RO has previously awarded a 100 percent disability rating for the Veteran’s PTSD from August 19, 2016, her TDIU claim is rendered moot from that date, and the Board will address the period prior to that date below. 1. Service connection for an acquired psychiatric disorder, other than PTSD and major depressive disorder, is dismissed Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In October 2017 correspondence, the Veteran’s representative notified the Board that the Veteran wished to withdraw her appeal concerning the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD and major depressive disorder. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed.   2. A TDIU is granted. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the 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; provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). 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). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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; provided that, permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. The Veteran’s combined rating for her service-connected disabilities was 70 percent effective the date of the filing of her claim for TDIU on December 11, 2013. Following the filing of her TDIU claim, the Veteran was awarded a temporary 100 percent rating for a period of hospitalization over 21 days for her service-connected PTSD. The temporary 100 percent evaluation was granted for the period from December 28, 2015 to March 1, 2016. Thus, the issue of entitlement to a TDIU is moot for that period and the Board will evaluate entitlement to a TDIU for the period prior to December 28, 2015, as well as for the period between March 1, 2016 and August 19, 2016. As she had a single disability rated 60 percent or more during these periods, the Veteran has met the schedular requirements for TDIU between December 11, 2013 and December 28, 2015, as well as between March 1, 2016 and August 19, 2016. 38 C.F.R. § 4.16 (a). In her December 2013 Application for Increased Compensation Based on Unemployability, the Veteran indicated that she last worked on a full-time basis in 2007, and that she worked part-time between August 2012 to December 2013 as a clerk at Walmart. An April 2017 appellate brief indicated that the Veteran was a special education teacher after service until 2007, at which time she was terminated from that position due to stress, anxiety, paranoia, and depression. The brief further stated that the Veteran was forced to leave her position at Walmart due to an inability to manage her schedule and difficulty cooperating with coworkers. In November 2013, the Veteran underwent a VA psychological examination. Based upon the observed and reported symptoms, the examiner concluded that the psychiatric diagnoses significantly impacted the Veteran’s workplace interactions. She further noted that it was difficult for the Veteran to adapt to work or a worklike setting, or to establish effective work relationships. VA treatment records reflect that the Veteran experienced ongoing issues with her coworkers, and missed days of work due to her mood issues. See VA Treatment Records dated September 20, 2013 and December 2, 2013. Notably, in July 2015, a VA treatment provider concluded that the Veteran was unable to function in the workplace, while an August 2016 treatment provider found that she was unable to maintain employment due to her psychiatric symptoms. See VA Treatment Records dated July 22, 2015 and August 10, 2016. Additionally, in April 2017, the Veteran’s representative submitted an April 2009 decision of the Social Security Administration (SSA), which concluded that the Veteran could not consistently perform simple tasks while employed in a full-time position, due to interruptions caused by panic attacks, agoraphobia, depression, and thoughts of past trauma. The decision further determined that the Veteran was unable to respond appropriately to changes in a work-like setting. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350 (2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10; Floor v. Shinseki, 26 Vet. App. 376, 381 (2013). Based on the evidence of record, the Board finds that it is at least as likely as not the Veteran was unemployable due to her service-connected PTSD prior to August 19, 2016. As noted above, she meets the schedular requirements, she has been unemployed throughout the pendency of this appeal, and her PTSD symptoms have since been shown to be severe enough to preclude employment. For the periods between December 11, 2013 and December 28, 2015, as well as between March 1, 2016 and August 19, 2016, the record summarily reflects that the Veteran experienced numerous severe psychological impairments which affected her ability to secure or maintain substantially gainful employment. Her service-connected PTSD resulted in depression, anxiety, paranoia, panic attacks, agoraphobia, and mood issues, all of which impaired her ability be employed in any form of a full-time position, to include sedentary work. The evidence of record, to include the VA treatment records, VA examination reports, and the SSA report discussed above, indicates that the Veteran could not maintain physical or sedentary employment due to her psychological disabilities. Thus, her options for securing or maintaining substantially gainful employment that can sufficiently accommodate her psychological symptomatology were very limited, at best, during these periods. Overall, the Board considers the evidence on the question at issue to be in equipoise. Giving the benefit of the doubt to the Veteran, a TDIU is warranted. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel