Citation Nr: 21003167 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-07 356 DATE: January 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to special monthly compensation (SMC) is remanded. FINDING OF FACT The Veteran’s service-connected disabilities prevent him from obtaining and retaining substantially gainful employment consistent with his educational background and work experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2003 to September 2006. The Veteran presented testimony before the undersigned Veterans Law Judge of the Board during a December 2018 videoconference hearing. A copy of the transcript has been associated with the Veteran’s claims file. In May 2019, the Board previously remanded this matter to the RO for additional development and consideration. All requested actions have been completed and the case is once again before the Board. TDIU The Veteran is seeking entitlement to a TDIU. He states that, due to the severity of his service-connected disabilities and, in particular, his posttraumatic stress disorder (PTSD), he is unable to obtain or maintain substantially gainful employment. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16 (a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. 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. Further, in Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Court held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA’s duty to assist “does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities.” See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner’s opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Here, the Veteran has been in receipt of an at least a 70 percent combined disability rating since November 4, 2010, which includes the 70 percent rating for PTSD. He is presently in receipt of a 90 percent disability rating, which includes migraine headaches, low back disability, right lower extremity radiculopathy, a skin disability, and tinnitus. Since he filed his claim for a TDIU on July 12, 2013, the schedular requirements for a TDIU have been met for the entire period on appeal. On his July 2013 VA Form 21-8940, the Veteran indicated that he was prevented from obtaining and maintaining substantially gainful employment due to his service-connected PTSD. Also on this TDIU application, the Veteran reported that he last worked full time in October 2012, but was too disabled to work as of May 2012. The Veteran also reported that he was employed part time until May 2013 as a warehouse order puller. The Veteran further indicated that he had a high school education. Finally, during his December 2018 Board hearing, the Veteran testified he was going to school with other veterans and doing “hands on” work. See December 2018 Hearing Transcript. The Veteran testified that he experiences a lot of anxiety at work and has difficulty with other employees by not seeing “eye to eye.” He further stated that he works a lot of temporary jobs, lasting a week or two, but does not maintain employment. Here, the evidence supports a finding that the Veteran is unemployable as a result of his service-connected disabilities. Specifically, a June 2013 PTSD Disability Benefits Questionnaire (DBQ) notes the Veteran’s symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationship, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Thereafter, a May 2018 Headaches Conditions DBQ noted the Veteran’s report that he suffers from characteristic prostrating attacks occurring monthly. He also reported nausea, and sensitivity to light and sound, with a duration of less than 1 day. It was also noted that the Veteran was employed between 2010 to 2016, doing various temporary jobs for 30 days each time between. The May 2018 Back Conditions DBQ noted the Veteran experiences pain on weight-bearing and non-weight bearing. The VA examiner indicated the low back disability impacts the Veteran’s employment in that it results in limitations with bending activities. The July 2018 PTSD DBQ noted the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. The symptoms noted on examination included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. In September 2018, the Veteran’s live-in girlfriend submitted a statement in support of his claim of entitlement to a TDIU. She stated he wakes up, plays video games, goes to school, and comes home to play video games. She also stated that he has a hard time dealing with the everyday tasks of life, does not have a social life, does not sleep, and gets angry and frustrated very easily and quickly. She stated it was her belief that he could not work or obtain gainful employment, due to his difficulty with “everyday living and tasks of life,” including personal hygiene. An October 2018 Addendum/ Clarification opinion to the July 2018 PTSD DBQ noted that the most significant symptom related to the Veteran's employability appeared to be motivation. Further, the examiner commented on the statement from the Veteran’s girlfriend noting he was attending school. The examiner stated that the ability to attend school demonstrated that his symptoms did not preclude him from performing employment-related abilities, such as mental focus, intelligence, stamina, and task completion. Therefore, based on the evidence of record, the examiner concluded that the Veteran maintained the overall ability to function in an occupational environment. Most recently, the January 2020 VA examiner noted the Veteran has work-related difficulty primarily reflecting his difficulties getting along consistently with civilian co-workers and, as such, he would likely have occasional occupational deficits associated with getting along reliably with civilian co-workers. See January 2020 PTSD DBQ. The Board finds that there is competent and probative evidence that shows the Veteran’s PTSD and other service-connected disabilities cause him to have difficulty with working with other people, and coping with the demands of a work environment in that he is unable to maintain employment as a result. Further, the Board notes the physical limitations as articulated in the May 2018 Back Conditions DBQ and Headaches DBQ, which would undoubtedly impact his previous employment in a warehouse facility. The Board therefore finds that there is adequate and competent evidence indicating that the Veteran’s service-connected disabilities in combination prevent him from being able to maintain any gainful employment. Notably, the Board has considered whether any one service-connected disability has rendered the Veteran unemployable and finds that the record, at this juncture, does not clearly indicate that to be the case. Specifically, the evidence of record reflects that the Veteran’s PTSD results in depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationship, and difficulty in adapting to stressful circumstances, including work or a worklike setting. However, none of the psychiatric examiners have stated that he is unemployable in such a situation. TDIU may meet the requirement of a disability rated as 100 percent disabling for purposes of section 1114(s)(1) only if the veteran’s unemployability is based on a single condition. Youngblood v. Wilkie, 31 Vet. App. 412, 415 (2019); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). See June 2013, July 2018, and January 2020 VA PTSD DBQs. As to his low back and headaches disabilities, the May 2018 VA examiners both noted physical limitations and an impact on employability. The evidentiary standard for TDIU opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific Veteran would be so precluded as a result of service-connected disabilities. Thus, when considering this specific Veteran’s disabilities in connection with his employability, the evidence of record establishes entitlement to TDIU. Hence, affording the Veteran the benefit of the doubt, the claim is granted. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to SMC The Board notes that further development is required prior to a decision regarding whether he is entitled to SMC. VA has a duty to maximize a Veteran’s benefits, which includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, entitlement to SMC under 38 U.S.C. § 1114(s) may be warranted if the Veteran has a single service-connected disability rated at 100 percent and: (1) has additional a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. See Bradley, 22 Vet. App. at 280. For 38 U.S.C. § 1114(s) purposes, entitlement to TDIU for a single disability constitutes a 100 percent rating for a single service-connected disability. Id. In this case, the Veteran is now in receipt of a TDIU, as noted above. However, it is unclear whether the evidence supports a finding that the TDIU is warranted based solely on the Veteran’s psychiatric disability, or a as due to a combined effect of all service-connected disabilities. Notably, if it is determined the TDIU is warranted based on the PTSD alone, then the Veteran does meet the schedular requirement that he has additional disabilities that combine to a 60 percent rating, and entitlement to SMC may also be established. Therefore, on remand, the AOJ should undertake appropriate development to determine whether the Veteran’s TDIU is the result of an individual disability or, rather, a combined effect. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine whether he is unemployable on account of his service-connected disabilities, either on an individual basis or in the aggregate. All findings and conclusions should be set forth in a legible report. 2. The AOJ should then address the issue of entitlement to SMC in light of the findings in the VA examination. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, Counsel 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.