Citation Nr: 20045067 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 13-06 525A DATE: July 7, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 20, 2018 is granted. FINDING OF FACT The Veteran's combined disability rating is 70 percent from August 19, 2010, 100 percent from February 2, 2012, and 70 percent from April 1, 2012, with one disability rated at least 40 percent, and his service-connected disabilities prevent him from following or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to September 20, 2018 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16(a), 4.25 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to June 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a July 2016 hearing. This issue was previously before the Board in a November 2017 decision when it was found to have been raised as part and parcel of the Veteran’s appeal of an initial rating claim for post-traumatic stress disorder (PTSD). That decision granted entitlement to an initial evaluation of 70 percent for PTSD, and remanded for further development. While on remand, the RO granted an evaluation of 100 percent for PTSD effective September 20, 2018 in an October 2018 rating decision. The November 2017 remand directives were completed, and returned to the Board in January 2019 when service connection for hypertension, to include as secondary to PTSD, was granted, and entitlement to an initial evaluation in excess of 70 percent for PTSD prior to September 20, 2018 was denied. Remand was required for implementation of that decision and reconsideration of TDIU. A February 2019 rating decision implemented the Board decision, granting a noncompensable evaluation for serviced-connected hypertension from August 19, 2010, and a ten percent evaluation from May 14, 2012. In a May 2020 rating decision, the RO denied entitlement to TDIU, and the issue was returned to the Board for appellate review. In some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran may receive a total (100 percent) rating based on a combination of his service-connected disabilities, or for a single service-connected disability. Special monthly compensation (SMC) may be warranted in addition to his regular compensation if the Veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Thus, if the Veteran's total rating is based on a combination of his service-connected disabilities (which, by definition, would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU is not moot if it could be granted on a single disability thereby making the Veteran eligible for SMC. However, if he has a single disability already rated at 100 percent, entitlement to TDIU becomes moot because he has already met that portion of the requirement for SMC. Here, a 100 percent evaluation is for assignment for PTSD as of September 20, 2018, But the Veteran has not asserted, and the evidence does not show, that the hypertension affects his employability. Thus the issue of SMC is not for consideration and TDIU on and after September 20, 2018 is moot. Entitlement to TDIU prior to September 20, 2018 The Veteran contends that he is unemployable due to his service-connected PTSD. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). First, service connection is in effect for the following disabilities: PTSD, and hypertension associated with PTSD. For the time period on appeal, the Veteran’s combined disability evaluation is 70 percent from August 19, 2010, 100 percent from February 2, 2012, and 70 percent from April 1, 2012. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated at least 40 percent disabling, and his combined disability evaluation is at least 70 percent. Second, the Veteran has been unemployed throughout the appeal period. December 2011 VA records indicate that the Veteran owned several businesses in the past, including a restaurant that he co-owned from 2006 to 2007. In a June 2018 statement, the Veteran reported that he was previously employed in environmental air systems in 2008 and that he had been laid off. During a September 2018 VA examination, the Veteran reported that after leaving service, he found employment in the farming industry until 2010 when he had to stop working because of his psychiatric problems. During his 2016 Board hearing, the Veteran reported that he had owned a Christmas tree farm, but in 2010 he had a mental breakdown and was ready to end his own life, so he sold the farm. October 2010 VA records indicate that the Veteran had been unable to find formal employment since being laid off in November 2008. February 2011 VA records indicated that the Veteran graduated from Appalachian State with a degree in business. Third, the evidence shows that for the entire period on appeal, the Veteran has been unable to follow or maintain substantially gainful employment due to his service-connected disabilities. The Veteran's PTSD impacts his employability. Notably, of record is a February 2011 VA PTSD examination. The examiner opined that the Veteran’s PTSD symptoms had generally caused intermittent difficulties in occupational and social functioning over the course of his life; and major depression caused more severe problems in occupational and social functioning, but the examiner opined that the symptoms could not be differentiated. During his 2016 Board hearing, the Veteran reported that he experienced panic attacks on a daily basis, sometimes multiple panic attacks a day. He stated that he needs control over his surroundings, that he is constantly checking everything, including the stove, oven, fridge doors, and every window and door in his house. These statements appear to be consistent with mental health history documented in VA medical records. He also reported daily suicidal ideations. In October 2010, the Veteran was psychiatrically hospitalized with suicidal thoughts, plans, and hearing voices. Upon discharge, the Veteran denied suicidal thoughts and auditory hallucinations. November 2010 VA records indicate that the Veteran continued to report no auditory or visual hallucinations, delusions, and the examiner opined that he did not appear to be responding to internal stimuli. During the February 2011 examination, the Veteran reported that he had become more depressed, withdrawn, and did not want to do anything. He asserted that he sometimes heard voices telling him he was stupid or useless; but, that generally he was otherwise able to complete most activities of daily living. January 2012 VA records indicate that the Veteran’s affect was anxious, but he denied suicidal ideations, and had good judgment. In 2012 the Veteran was admitted to the psychiatric ward at the Salisbury VA Medical Center for a 6-week PTSD clinic, for which he was granted a temporary rating of 100 percent. And in December 2012, the Veteran reported that he was depressed, but denied suicidal ideations. The examiner found his thought process was coherent, relevant, logical, and goal directed. Numerous VA records from June 2014 through July 2016 indicate that the Veteran was again endorsing suicidal ideations. Many of these records also reflect the Veteran’s reports of avoidant behavior, intrusive thoughts, lost time, difficulty concentrating, lack of interest, and irritability. These mental status examinations showed he was consistently alert and oriented, with normal thought processes; and either normal, fair, or good insight and judgement, but he was generally depressed with a congruent affect. In August 2017 VA records, the Veteran complained of PTSD and depression causing an inability to do anything for a day or two, up to a week. He reported having thoughts of suicide, but denied plans or intent. He reported that he felt good on that day and denied suicidal or homicidal ideations, but his PTSD caused involuntary, recurrent distressing memories, and negative emotional states. In October 2017, the Veteran continued to report daily thoughts of suicide without intent or plan. And February and May 2018 records indicate that the Veteran denied feeling depressed. The Veteran has made no arguments that his service-connected hypertension secondary to his PTSD affects his ability to obtain and retain employment, and no VA examinations on record appear to make that connection. Resolving all doubt in favor of the Veteran, the most probative evidence of record indicates the Veteran would be unable to maintain substantially gainful employment. The Board places significant weight on the February 2011 VA examination finding that the PTSD and depression (which could not be differentiated) causes clinically severe or significant stress or impairment in social, occupational, or other important areas of functioning. Additionally, the Board places great weight on the VA records indicating that the Veteran experienced numerous periods of time with depression, suicidal ideation, auditory hallucinations, and daily panic attacks. The Veteran’s mental health has been severe to the point that the Veteran was admitted to mental health facilities on two separate occasions. The combination of these limitations causes unemployability. Accordingly, the record demonstrates that entitlement to a TDIU prior to September 20, 2018 is warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.