Citation Nr: 21003396 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 06-38 717 DATE: January 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT Resolving all reasonable doubt in her favor, the Veteran’s service-connected disabilities preclude her from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1974 to March 1978 and October 1982 to March 1985. Importantly, the Board notes that this issue was first included in an April 2011 Board remand, wherein it was determined that it was part and parcel of the Veteran’s claim for an increased rating for her status post removal of the left ovary. The Board indicated in the April 2011 remand that the issue of entitlement to an increased rating for status post removal of the left ovary stemmed from a December 2008 rating decision; however, the claims file indicates that the Veteran’s claim for an increased rating was received in May 2000, a rating decision was issued in July 2000, a notice of disagreement was received in August 2000, a statement of the case issued in August 2003 and a VA Form 9 was received in August 2003. The Veteran has indicated that she is unable to work due to her disabilities throughout the appeal period; as such, the Board finds that the issue of entitlement to a TDIU is part and parcel of her increased rating claim, which was received in May 2000. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. She asserts her service-connected disabilities prevent her from obtaining and maintaining employment. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more 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. See 38 C.F.R. § 4.16 (a). 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, the fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). As noted, the claim for entitlement to a TDIU stems from an increased rating received in May 2000. The Veteran is service connected for total vaginal hysterectomy with bilateral salpingoopherectomies, rated as 100 percent from December 26, 2000 and as 50 percent, from April 1, 2001; posttraumatic stress disorder and persistent depressive disorder, rated as 50 percent disabling from January 14, 2010; total vaginal hysterectomy, rated as 100 percent disabling from October 1, 1997 and as 30 percent disabling from March 1, 1998 to December 26, 2000; status post removal of left ovary, rated as 10 percent disabling from April 1, 1988 and as 30 percent disabling from July 14, 2008; and residuals of corneal abrasions, dry eye syndrome, rated as noncompensable from July 20, 2005. The Veteran has a combined 40 percent rating, from March 1, 1998, a combined 100 percent rating from December 26, 2000, a combined 60 percent rating from April 1, 2001, a combined 70 percent rating from July 14, 2008 and a combined 80 percent rating, from January 14, 2010. The Veteran has disabilities affecting a single body system (gynecological). In the Veteran’s VA Form 21-8940, Application for Increased Compensation Based on Unemployability in June 2009, she reported that her “removal of female organs and Gerds” prevent her from securing or following any substantially gainful occupation. She indicated that she completed four years of high school, four years of college, a master’s degree in education, and completed paralegal correspondence training. She reported that her disabilities affected her full-time employment and she had last worked on a full-time basis in December 2000. An additional VA Form 21-8940 was received in June 2010. She again reported last working in December 2000 as a substitute teacher. She indicated that she has a home health certificate and has completed religious studies and paralegal studies at home by pen because she is computer illiterate. She asserted she could no longer work due to “adhesions, left side, throwing up.” The Veteran was afforded a VA examination in August 2008. She reported having pain every day, described as sharp and stabbing pains in the left lower abdomen. It was noted that the condition required continuous treatment but had poor response to treatment in that the symptoms were not controlled. The Veteran was noted to have frequent abnormal vaginal discharge, continuous pelvic pain, frequent abdominal pain, and occasional bladder symptoms with a history of cystitis. The examiner noted that the Veteran had been unemployed for the last five to ten years, due to pelvic pain and vomiting and that her service-connected disabilities had significant effects on her occupation. The examiner specified that the Veteran’s disability caused decreased concentration, inappropriate behavior, decreased mobility and pain. The examiner also indicated that the Veteran’s disability affected her usual daily activities, severely impacting chores, shopping, recreation, traveling, and feeding and moderately impacting bathing, dressing, toileting and grooming. An August 2013 Disability Benefits Questionnaire (DBQ) completed by a private psychiatrist indicates the Veteran had total occupational and social impairment. A July 2015 VA examination indicates the Veteran had “after effects related to the surgery with adhesions and bowel disorders. Chronic vomiting.” She was noted to have intermittent pain. The examiner indicated that the Veteran’s condition was active. A July 2018 DBQ completed by a psychologist indicates the Veteran suffered from near continuous panic, chronic sleep impairment, speech intermittently illogical, impaired judgment, inability to establish and maintain effective relationships, and mild memory loss. It was noted that she had been unemployed since 2000. The examiner indicated the Veteran had total occupational and social impairment and that all symptoms played a role in her unemployment. A December 2019 VA examination for her psychiatric disability noted that the Veteran had irritable behavior, angry outbursts, problems with concentration, sleep disturbance, mild memory loss, impairment of short- and long-term memory, and poor focus. The examiner indicated that the Veteran’s symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functioning. In October 2020, the Veteran’s private treatment providers, Dr. M. and Dr. L., submitted statements opining that the Veteran is unable to do any physical or sedentary work; however, the Board acknowledges that the physicians list nonservice-connected disabilities in addition to her service-connected disabilities, as affecting the Veteran’s employment. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). In considering the question of the Veteran’s capability of securing and following substantially gainful employment, the evidence indicates that although she is qualified to perform less physically demanding work, she would have significant difficulty with securing and following an occupation due to her need for numerous medical appointments related to her service-connected gynecological disabilities. Also due to her gynecological disabilities, as noted in the August 2008 VA examination, she would have difficulty concentrating, memory problems, inappropriate behavior, decreased mobility, and difficulty maintaining employment due to her constant, continuous pain, angry outbursts, poor focus, and the effects of her service-connected disabilities on her activities of daily life including traveling, feeding, bathing, dressing, toileting and grooming. Medical evidence indicates that the Veteran’s status post removal of left ovary and subsequent total vaginal hysterectomy with bilateral salpingoopherectomies resulted in severe pain, affecting her ability to work. See, e.g., April 1988 VA examination. The Veteran has a lengthy, complex medical history of left pelvic pain and various gynecological symptoms and treatment, beginning in service and continuing thereafter. As noted in an August 1999 VA examination, after discharge from service, the Veteran was seen at least every other month, sometimes more frequently, with complaints of constant pain since at least 1985. Of note, the August 2008 VA examination indicated that the Veteran had continuous pelvic and abdominal pain and had not worked from five to ten years due to pelvic pain and vomiting. The examiner indicated that the Veteran’s disability had significant effects on her occupation, including decreased concentration, inappropriate behavior, decreased mobility and pain, which also affected her usual daily activities. Importantly, prior to January 2010, the Veteran was not yet service connected for her psychiatric disabilities. Resolving all reasonable doubt in her favor, the Board finds that the Veteran’s service-connected physical disabilities precluded her from following a substantially gainful occupation prior to January 2010, and thereafter, her mental and physical disabilities preclude her from following a substantially gainful occupation. The Board acknowledges that VA’s duty to maximize benefits requires it to assess all of a claimant’s service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, 22 Vet. App. 280, the Court held that 38 U.S.C. § 1114 (s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating. When a Veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. A Veteran with a 100 percent schedular disability rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the SMC requirements (100 percent rating plus 60 percent rating). A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a “total” (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC. See Buie at 249-50. Concerning both Bradley and Buie, in this case, the Veteran has not contended, and the evidence of record does not reflect, that any single service-connected disability has rendered her unable to secure or follow a substantially gainful occupation. The Veteran is currently service connected for multiple disabilities and has contended mainly that her gynecological disabilities render her unemployable. To award a TDIU based solely on one of her service-connected disabilities would result in duplicate counting of disabilities. 38 C.F.R. § 4.14. The Board finds that neither Bradley nor Buie is applicable here. As noted, although private medical professionals indicated the Veteran’s psychiatric disability renders her unemployable, VA examiners have all opined that the Veteran’s psychiatric disability alone causes no more than occupational impairment with reduced reliability and productivity. The Board also acknowledges more recent medical opinions in October 2020 from Dr. M. and Dr. L., however, these medical opinions indicate the Veteran is unemployable due to a combination of disorders, including some nonservice-connected disorders, and not due solely to her service-connected psychiatric disability. The Board is not persuaded that the Veteran’s service-connected psychiatric disability alone renders the Veteran unemployable. Finally, the Board notes that the Veteran is already in receipt of a 100 percent rating with special monthly compensation for a portion of the period on appeal; any effective date assigned for the grant of a TDIU is subject to the law and regulations governing the award of monetary benefits. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.