Citation Nr: 21001228 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-08 784 DATE: January 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from October 19, 2006 is granted. Entitlement to a TDIU based on depressive disorder alone from October 25, 2019 is granted. Entitlement to special monthly compensation (SMC) at the housebound rate from October 25, 2019 is granted. FINDINGS OF FACT 1. From the date of claim, October 19, 2006, the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. 2. From October 25, 2019, the Veteran’s service-connected depressive disorder alone has rendered him unable to secure and follow a substantially gainful occupation. 3. From October 25, 2019, the Veteran has a total disability evaluation due solely to his service-connected depressive disorder, and additional service-connected disabilities independently rated at least 60 percent disabling. CONCLUSIONS OF LAW 1. Effective October 19, 2006, the criteria for TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. 2. Effective October 25, 2019, the criteria for TDIU due to service-connected depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. 3. Effective October 25, 2019, the criteria for entitlement to SMC at the housebound rate, on a statutory basis, have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had over 23 years of active duty service ending with his retirement in February 2001. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2018. A transcript of the hearing has been associated with the record. The Board previously remanded this matter for further development in February 2019. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran has been awarded a maximum 100 percent combined disability rating from October 23, 2019 and the Agency of Original Jurisdiction determined that the issue of entitlement to a TDIU from this date was rendered moot. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate). See 38 U.S.C. § 1114 (s). Thus, under Bradley, as in the instant case, even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. In this case, although the Board awarded a TDIU herein based on the Veteran’s service connected disabilities in effect in October 2006, as discussed further below, the Board finds that as of October 25, 2019, a TDIU is also warranted based on depressive disorder alone and, in turn, the Veteran meets the requirements for SMC as of that date. The issue of entitlement to service connection for a cervical spine disorder is also on appeal. However, the Veteran has requested a Board hearing with respect to this matter, which is currently pending. As such, this matter will be addressed in a separate Board decision at a later date. Entitlement to TDIU due to service connected disabilities from October 19, 2006 The Veteran has asserted that he is unable to work due to his service-connected disabilities. He has not worked since he retired from the Army in February 2001. While in service, the Veteran primarily performed maintenance on helicopters, which would appear to be a physical type job. The Veteran filed his current application for a TDIU on October 19, 2006. The issue was denied in a June 2008 rating decision. However, new and material evidence, including Social Security Administration records, were received within one year of the decision. Thus, the June 2008 rating decision did not become final and the issue has been pending since the October 2006 claim. 38 C.F.R. § 3.156(b). A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a). Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, neither the Veteran’s nonservice-connected disabilities nor may advancing age be considered. In this case, the Veteran’s current service-connected disabilities consist of depressive disorder (rated at 30 percent disabling from November 24, 2015 and 70 percent disabling from October 25, 2019); benign prostatic hypertrophy(BPH) (rated at 60 percent disabling from March 1, 2001); fibromyalgia (rated at 40 percent disabling from October 19, 2006); sinusitis (rated at 10 percent disabling from March 1, 2001, and 30 percent disabling from October 23, 2019); tendinitis, right shoulder (rated at 10 percent disabling from August 2, 2011 and 20 percent disabling from October 23, 2019); tendinitis left shoulder (rated at 10 percent disabling from August 2, 2011 and 20 percent disabling from October 23, 2019); residuals of low back strain (rated at 10 percent disabling from March 1, 2001); tinnitus (rated at 10 percent disabling from March 1, 2001); hypertension (rated at 10 percent disabling from March 1, 2001); postoperative gallbladder surgery (rated at 10 percent disabling from March 1, 2001); chondromalacia patella left knee (rated at 10 percent disabling from August 2, 2011); and scar associated with postoperative residuals of gallbladder surgery (rated at 0 percent from October 23, 2019). From the date of claim for TDIU, October 19, 2006, the Veteran has had at least one disability ratable at 40 percent or more and his multiple service connected disabilities combine to a disability rating of 90 percent. Thus, the Veteran has met the minimum schedular requirements for TDIU throughout the course of the appeal. 38 C.F.R. § 4.16 (a). Moreover, the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110 (b)(2). As such, the Board has considered the medical evidence within one year prior to the date of the Veteran’s TDIU claim, which was submitted on October 19, 2006. Therefore, the remaining inquiry is whether the Veteran’s disabilities render the Veteran unable to secure or follow a substantially gainful occupation. Factors such as employment history, as well as educational and vocational attainments, are for consideration. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. The Board notes that 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, 1354 (Fed. Cir. 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; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). After reviewing the totality of the evidence, the Board finds that the evidence of record shows that the Veteran is precluded from substantially, gainful employment due to the functional limitations and impairment caused by his service-connected disabilities from the date of claim, October 19, 2006. Initially, with respect to the disabilities for which service connection was in effect at the time of the Veteran’s claim, the Board notes that the lay and medical evidence does not show that tinnitus, hypertension, and residuals of gallbladder surgery preclude the Veteran from gainful employment. In this regard, the October 2019 VA examiner found that these disabilities did not impact the Veterans’ ability to work. However, the Board finds that the combination of functional impairment caused by the Veteran’s BPH, fibromyalgia, sinusitis and low back strain precluded substantially gainful employment from the date of the Veteran’s claim. The Veteran has consistently reported that due to the functional impairment of these disabilities, he is unable work. In this regard, the Veteran reported that due to his BPH, he must use the bathroom throughout the day and night. Due to having to get up so many times during the night, he has interrupted sleep and felt tired most of the day with no energy. He has also reported that he experienced constant pain due to his fibromyalgia, which prevented both physical and sedentary employment. Although the April 2012 VA examiner indicated that the Veteran would not be precluded from work, the Veteran has refuted the examiner’s findings with respect to his level of activity and has indicated that while trying such activities, he has been unable to do them because of his fibromyalgia. The examiner also indicated that the Veteran did not have fibromyalgia despite VA clinical records showing consistent treatment for such with varying levels of pain. Importantly, the October 2019 VA examiner found that the Veteran’s fibromyalgia impacted his ability to work because it was painful to do most activities that require physical exertion. The examiner also found that the Veteran’s sinusitis impacted his ability to work as he would be unable to work during acute attacks. With respect to the Veteran’s BPH, the examiner found that the Veteran’s disability impacted his ability to work as he could not sit for prolonged periods as he needs to urinate frequently. Likewise, the examiner found that the Veteran’s low back disability also impacted his ability to work as prolonged sitting and lifting were limited due to back pain. Moreover, although not binding on the Board, the Board finds it significant that the Veteran was found disabled by the SSA due at least in part to his BPH, fibromyalgia, low back disorder and chronic sinusitis. The Board recognizes that another VA examiner, who did not examine or interview the Veteran, determined in a September 2020 opinion that despite the Veteran’s functional impairment caused by his service-connected disabilities, reasonable workplace accommodations could be used to meet the his needs. However, the examiner did not describe what sort of accommodations would be needed. Moreover, the examiner did not discuss such accommodations in context of the Veteran’s employment experience of working on helicopters. As such, the Board concludes that the findings of the October 2019 VA examiner that described the Veteran’s functional impairments and impact on his employment as more probative. In sum, the medical and lay evidence shows significant impairment working in physical and sedentary jobs due to the Veteran’s service-connected disorders, including pain on physical exertion, inability to sit for prolonged periods and tiredness through the day. As such, when considering the totality of the functional impairment caused by his service-connected disabilities as described by the lay and medical evidence of record, as well as taking into consideration his work history, education and experience, and when resolving all doubt in his favor, the Veteran would be precluded from substantially gainful employment due to his service-connected disabilities. Moreover, based on the evidence of record, the Board finds that the evidence does not show that it was factually ascertainable one year prior to the October 19, 2006 claim that the Veteran was unable to obtain or maintain substantially gainful employment. The Board recognizes that the Veteran last worked in 2001 when he retired from the Army. However, the Board finds that the Veteran has been unemployable at least in part due to his service-connected fibromyalgia. The United States Court of Appeals for Veterans Claims recently 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, as service connection for this disability was not awarded until October 19, 2006, the appropriate effective date is the date of claim, October 19, 2006. In conclusion, when resolving all benefit of the doubt in the Veteran’s favor, the Board must conclude that the Veteran is unemployable due to his service-connected disabilities and, in turn, entitlement to TDIU is warranted, effective October 19, 2006. See 38 U.S.C. § 5107 (b). Entitlement to TDIU due to service-connected depressive disorder alone from October 25, 2019 The Veteran has been awarded a 70 percent disability rating for his depressive disorder, effective October 25, 2019. As such, he meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) as of that date. Importantly, the award of TDIU above was in no part based on his depressive disorder as he was not awarded service connection for such disorder until November 24, 2015. Moreover, again, the evidence of record shows that the Veteran last worked in 2001 when he retired from the miliary. However, the Board must still determine whether the Veteran’s service-connected depressive disorder results in impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. In this regard, at the October 25, 2019 VA examination, it was noted that the Veteran was often home bound with limited social interaction. The Veteran experienced depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; and disturbances in motivation and mood. The examiner noted that secondary to the Veteran’s chronic pain, he reports ongoing daily feelings of depression, depressed mood that limits his social interactions, limits his ability to go out and interact with friends. As a result, he experiences prolonged feelings of depression that keeps him from effectively functioning around or with other individuals. The Veteran reports that due to the pain he is usually home. Further, in a November 2013 opinion, the same VA examiner opined that the Veteran was so depressed that he has difficulty sustaining energy and motivation to complete assignments of work. Thus, when considering the totality of the functional impairment caused by his service-connected depressive disorder as described by the evidence of record, as well as taking into consideration his work history, education and experience, and when resolving all doubt in his favor, it would seem that the Veteran would be precluded from substantially gainful employment due to his depressive disorder as of October 25, 2019. Prior to this date, the Veteran does not meet the schedular criteria for a TDIU based on depressive disorder alone. Moreover, the evidence does not show that he was unemployable due to his depressive disorder alone during this period. In this regard, the January 2016 VA mental disorder examination showed that the Veteran had occupational social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Moreover, VA clinical records during this period show that the Veteran’s mood disorder was stable and the Veteran felt that his medications were controlling his depression well. Accordingly, referral for extraschedular consideration to the Director of Compensation and Service for the period prior to October 25, 2019 is not warranted. 38 C.F.R. § 4.16 (b). In conclusion, when resolving all benefit of the doubt in the Veteran’s favor, the Board must conclude that the Veteran is unemployable due to his service-connected depressive disorder and, in turn, entitlement to TDIU is warranted based on this disability alone from October 25, 2019. 38 U.S.C. § 5107(b). Entitlement to SMC at the Housebound Rating from October 25, 2019 Special Monthly Compensation is payable for housebound status on a statutory basis where the claimant has a single service-connected disorder rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Alternatively, such compensation may be granted when the claimant is permanently housebound by reason of service-connected disability or disabilities. Id. As discussed above, the Board has granted entitlement to TDIU based solely on depressive disorder from October 25, 2019. Further, the Veteran has additional service-connected disabilities independently ratable at 60 percent or more. Thus, from October 25, 2019, the schedular criteria for entitlement to SMC due to housebound status on a statutory basis have been met. However, the Board finds that the issue of entitlement to SMC for aid and attendance has not been raised by the record and is not before the Board at this time, as the evidence of record does not indicate that the Veteran is rendered so helpless due to his service-connected disabilities so as to require regular aid and attendance of another person during this period. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim) In sum, SMC based on housebound status on a statutory basis is warranted from October 25, 2019. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.