Citation Nr: 21064673 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-42 676 DATE: October 21, 2021 ORDER From July 1, 2013 to July 28, 2015, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. From July 29, 2015, entitlement to a TDIU is granted. REMANDED Entitlement to special monthly compensation (SMC) based on housebound status is remanded. REFERRED ISSUES At the Veteran's June 2021 Board hearing regarding his claim for assignment of a TDIU, the Veteran alleged his right inguinal hernia had worsened and that the residual scar from his right inguinal hernia repair is painful. In response, the undersigned offered to refer these issues to the Agency of Original Jurisdiction (AOJ) if formal claims for them had not yet been filed by the time of the Board decision on a TDIU. As claims for increased ratings for the Veteran's service-connected right inguinal hernia and right inguinal hernia scar have not yet been filed, the issues are referred, as discussed at the June 2021 hearing. FINDINGS OF FACT 1. From July 1, 2013 to July 28, 2015, the preponderance of the evidence is against finding the Veteran's service-connected disabilities precluded him from securing or maintaining substantially gainful employment. 2. From July 29, 2015, the Veteran's service-connected disabilities have precluded him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From July 1, 2013 to July 28, 2015, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From July 29, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to January 2005, February 2008 to February 2009, and January 2011 to December 2011. The record indicates more than twenty-two years of additional Army Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his July 2013 Notice of Disagreement, the Veteran expressed dissatisfaction with the May 2013 rating decision's initially assigned and reinstated ratings and reported that he was unemployable. In December 2019, the Board remanded the claim for a VA examination as to whether the Veteran's service-connected disabilities precluded him from substantially gainful employment. In June 2021, the Veteran presented testimony before the undersigned Veterans Law Judge. A transcript is on record. 1. From July 1, 2013 to July 28, 2015, entitlement to a TDIU is denied. 2. From July 29, 2015, entitlement to a TDIU is granted. The Veteran seeks entitlement to a TDIU. He contends he is and has been precluded from substantially gainful employment by his service-connected disabilities combined, or his posttraumatic stress disorder (PTSD) or back disabilities individually. The Board finds the combined effects of his service-connected disabilities precluded the Veteran from substantially gainful employment as of July 29, 2015, but not before. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. The ultimate issue of whether 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Initially, the Board notes the period on appeal begins July 1, 2013, as this is the date the Veteran filed a claim for a TDIU while expressing dissatisfaction with ratings assigned in a May 2013 rating decision. The Veteran has met the schedular criteria for a TDIU for his service-connected disabilities for the entire period on appeal, as the record shows he is in receipt of a combined 90 percent disability rating from December 25, 2011. Overall, he is service-connected and rated for PTSD as 50 percent disabling from December 25, 2011; right and left lower extremity radiculopathy as 40 percent disabling from December 25, 2011; lumbar degenerative disc disease as 20 percent disabling from December 25, 2011 and 50 percent disabling from February 2, 2018; left hip osteoarthritis as 10 percent disabling from December 25, 2011 and 70 percent from February 2, 2018; left shoulder rotator cuff tear as 10 percent disabling from December 15, 2011 and 20 percent from July 1, 2013; and tinnitus as 10 percent disabling from February 2, 2018. The Veteran is also service-connected at a noncompensable rate for a right inguinal hernia, a right inguinal hernia scar from surgical repair, and a left shoulder scar from his rotator cuff repair. As to education and training, the Veteran completed high school and two years of barber college. Past employment prior to service included work as a machine operator, in commercial painting, and in janitorial services. During service, the Veteran served in the military police, but predominantly as a supply clerk. The Veteran reports he has not been substantially employed in the civilian sector, that he has only worked for the Reserves. Although medical records indicate a brief stint with an unnamed recycling company from which he was fired after having problems with a supervisor, his predominant employment following active duty was with the Army Reserves. He ceased working in March 2015 as a supply clerk for the 90th Reserves. Turning now to the medical evidence, the Board notes that the Veteran was provided a set of VA examinations in April 2013. At his back examination, the Veteran reported some low back pain in the last few weeks. The examiner noted an x-ray from 2013 showed degenerative changes at the L5-S1 location. The Veteran reported flare ups impacted his ability to lift and bend. However, the Veteran's back exhibited full range of motion and full strength, with no evidence of pain on examination. At this time, the examiner remarked that the Veteran's back disability would not impact his functionality. His left shoulder examination was similar. The Veteran reported flare ups caused difficulty with movement and lifting. However, otherwise the examination was normal. His left shoulder exhibited full range of motion and full strength, with no evidence of pain on examination. His left shoulder scar was found not to be unstable or painful. His left hip also exhibited full range of motion and full strength with no pain on examination, including after repetitive use testing. The examiner noted no pain on palpation, no ankylosis, no assistive devices, and remarked the Veteran's left hip disability would not impact his functionality. At his PTSD examination, the Veteran reported that he currently worked as a supply clerk for the Reserves, but had recently lost a brief job at a recycling company following problems with a supervisor. The examiner observed the Veteran to suffer from chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. Based on this symptomatology, the examiner indicated the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner remarked the Veteran's PTSD was mild. The Veteran's right hernia was also examined. He was noted to have been diagnosed with a right inguinal hernia in 2009, which had been surgically repaired. There were no hernias noted upon examination, but for a small, reducible umbilical hernia for which the Veteran is not service-connected. The examiner remarked the Veteran's right hernia would have no impact on his functionality. The Veteran sought VA treatment in early 2015. In January, he reported that his PTSD symptoms were preventing him from working. In March, he stated he attended Reserve drills, but could not do anything during them, such as go to the range. He reported supervisors would ask him if he was "okay" after each formation. Private treatment records from April 2015, added to the record in June 2016, show a physician specializing in the spine found the Veteran to have "significant degenerative changes and a central disc herniation at L5-S1." It was noted physical therapy would not help due to the long-standing nature of the Veteran's back pain. The same physician authored a letter to VA explaining the Veteran's back restrictions were no lifting or carrying more than ten pounds, no running, sit-ups, push-ups, or walking more than 100 feet, and no bending. The physician noted his prognosis was "guarded at best." On July 29, 2015, the Veteran was provided another set of VA examinations, excluding an examination of his back. His left shoulder examination showed worsening symptoms. Range of motion testing revealed reduced range of motion in the Veteran's left shoulder, which also exhibited reduced strength. Pain was noted on examination and caused functional loss. The Veteran reported an inability to lift anything above his shoulder level. His left hip examination also indicated worsening since his 2013 examinations. He exhibited decreased range of motion, and reported a dull ache with movement and weightbearing. The Veteran also explained that his hip pain got progressively worse the more he was on his feet. His left hip disability was noted to cause a "great deal of difficulty" getting in and out of chairs. At his July 2015 PTSD examination, the Veteran reported his daily activities included eating breakfast fixed by his uncle, walking around the house, possibly walking around a shopping mall or the library, picking up lunch, and reading or watching television. He reported dating a woman from Columbia six months prior and that he enjoyed visiting her until the relationship ended. The examiner observed the Veteran's PTSD symptoms consisted of anxiety and chronic sleep impairment, and qualified these symptoms as resulting in occupational and social impairment due to mild or transient symptoms. His hernia and scars were noted not to impact his functionality. A Physical Evaluation Board form from August 2015 noted the Veteran was on permanent profile, that he would not be able to run two miles, do push-ups, sit-ups, walk, swim, or bike. He was reported to be unable to carry an assigned weapon. A summary of functional limitations confirmed no climbing, crawling, crouching, jumping/landing, lifting/lowering/carrying, pushing/pulling, running or weightbearing. His left shoulder was noted to prohibit overhead lifting. His back and hip were noted to be in chronic pain. Although records from September 2015 show the Veteran re-enlisted in the Army Reserves, he was simultaneously pursuing a medical chapter release from the Reserves. A summary of his service from 2013 to 2015 noted he displayed confidence and an enthusiastic attitude when it came to his duties, but that he was unable to train due to his permanent profile. A pending medical chapter was noted. The Veteran's PTSD was again assessed in May 2016. At this examination, it was noted the Veteran had inpatient psychiatric treatment following homicidal thoughts. The Veteran reported intrusive thoughts, nightmares three to four times a week even while on medication, being easily irritated, hypervigilant, and avoidant of conversations about the military. He reported attempting to cope, but not doing well around a bunch of people. He acknowledged having thoughts of hurting himself or others, but denied either at the time of examination. He reported similar activities of daily living as compared to those reported at his July 2015 examination. The examiner observed the Veteran's PTSD symptomatology to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. His back was again assessed in June 2016. At this examination, the Veteran reported back pain dating back to 2014. He also reported pain radiating down both of his legs and numb toes. The Veteran reported his functional loss as an inability to walk more than 100 feet, push, pull, bend, and lift. Upon examination, the Veteran's back exhibited less than half the normal range of motion and pain on every range of motion tested, which the examiner noted contributed to limiting the Veteran's ability to bend and lift. The Veteran was noted to have severe radiculopathy in both his legs. In July 2016, the Veteran reported he worked full-time as a processor, laborer from December 2012 to March 2013. The Veteran was provided another set of VA examinations in March 2018. At his back examination, he was noted to be unable to bend, lift, or stoop. He was unable to perform range of motion testing due to ankylosis, of which he exhibited unfavorable ankylosis of the entire thoracolumbar spine. While the examiner noted in the functional impact section that this back symptomatology would not impact the Veteran's ability to work, the Board does not afford this specific finding any probative weight, as it goes against the record and the information contained within the same examination report. The Veteran's left shoulder was assessed and exhibited weakened and reduced movement. The Veteran reported daily moderate sharp pain and an inability to lift anything above his head. The Veteran reported his left hip caused weekly moderate sharp pain, and it was impossible to sit or stand for greater than fifteen minutes due to pain. The examiner noted intermediate ankylosis of the hips, between favorable and unfavorable. At his March 2018 PTSD examination, the Veteran reported a tendency to self-isolate, be easily irritated, and argumentative. He reported difficulty relating to superior Army officers, intrusive memories of combat experiences, and chronic depression and anxiety. He also noted additional inpatient psychiatric treatment between 2015 and 2016. The examiner observed the Veteran's PTSD symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work. At an April 2018 VA hearing loss examination, the Veteran reported his tinnitus interfered with sleep, concentration, communication, and caused anxiety. In July 2018, a Physical Evaluation Board formally found the Veteran unfit for service due to his PTSD, back, and hips. The Veteran was most recently provided a set of VA examinations in June and July 2020. At his June 2020 PTSD examination, he reported that his sister prepared his meals and took him grocery shopping. He reportedly went to church, but not since the COVID-19 pandemic began. He indicated having a girlfriend that he would visit. The examiner observed the Veteran's PTSD symptoms to be depressed mood, anxiety, suspiciousness, chronic sleep impairment, speech intermittently illogical, obscure, or irrelevant, difficulty understanding complex commands, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner described the Veteran as involved, but having a hard time staying on track. The examiner noted the Veteran exhibited cognitive difficulties and questionable judgment. Although the Veteran alleged an unidentified mental health provider had told him he could go back to work, this examiner qualified the Veteran's PTSD as resulting in occupational and social impairment with deficiencies in most areas; and remarked that the Veteran's PTSD would more than likely preclude him from employment. The examiner separately noted the Veteran would have difficulty attending to or be easily distracted from tasks at hand, difficulty maintaining concentration and focus on work over of periods of time, and significant difficulty remembering instructions and details of work assignments. At his June 2021 Board hearing, the Veteran testified that he only worked for the Reserves and was only able to because of accommodations provided to him, that his PTSD increased his temper interacting with others, that he could not walk more than 100 feet without being in a lot of pain, and that he could not sit for extended periods of time without pain. He further testified that a friend performed as his caretaker, doing the Veteran's cooking, shopping, laundry, and driving. He explained that he retired from the Reserves doing supply work in 2015. In August 2021, the Veteran supplied a VA Form 21-8940 contending all of his service-connected disabilities precluded him from substantially gainful employment since his last day of work, on March 1, 2015. The Board finds the Veteran's service-connected disabilities have precluded him from substantially gainful employment from July 29, 2015, but not before. In this regard, the Board notes that in a recent precedent decision, in Ray v. Wilkie, the U.S. Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" to have 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. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Here, the Veteran's occupational history includes employment as a machine operator, painter, hygiene services, military police officer, and supply clerk. Machine operators must lift, push, pull, carry, keep concentration on the task at hand, and remember details. Painters must be on their feet and be able to reach above their shoulder or head height. Janitorial work requires walking, carrying, lifting, bending, pushing, and pulling. Military police work requires at least walking and could possibly involve running if the Veteran was required to respond to an emergency. Employment as a supply clerk also requires the ability to lift, push, pull, carry, walk, and remember details. Notably, all of these occupations require a physicality the record shows the Veteran has not possessed since before July 29, 2015. For example, at his July 29, 2015 examinations, the Veteran's left shoulder showed reduced range of motion and strength and the Veteran stated he was unable to lift above his shoulder. The Veteran's left hip was noted to become progressively more painful the more he was on his feet and even cause a "great deal of difficulty" sitting up and down out of a chair. Moreover, the record shows the Veteran's back disability restricted him from walking more than 100 feet, running, lifting and carrying more than ten pounds, and bending as of April 2015. The Board thus finds the combination of the back restrictions noted in April 2015 and those noted in his July 2015 VA PTSD, shoulder, and hip examinations have precluded the Veteran from substantially gainful employment in any of his prior occupations as of July 29, 2015, the date of his July 2015 examinations. However, assignment of a TDIU is not warranted prior to this date because the Veteran's disabilities had not yet precluded him from substantially gainful employment. To start, the Board notes the Veteran reported in his August 2021 application for a TDIU working full-time, making $30,000 during 2014, and maintaining this level of employment until he ceased working on March 1, 2015. A Veteran cannot receive a TDIU while still employed full-time or capable of such full-time employment. Moreover, the Veteran's April 2013 VA examinations showed the Veteran's service-connected disabilities were minimally impactful on his functionality. While the April 2015 assessment by the private spine physician indicated a great deal of physical restrictions due solely to the Veteran's back, the Board finds that the restrictions noted would not have precluded him from working as a painter. Notably, accordingly to the April 2015 assessment, the Veteran's back did not impact his ability to stand or lift the weight of a paint brush above his shoulder or head. Moreover, if he had to sit for a break, evidence showed the Veteran's hip did not make sitting up and down difficult until July 29, 2015. As such, the Veteran's service-connected disabilities did not preclude him from substantially gainful employment prior to July 29, 2015. Lastly, the Board acknowledges the Social Security Administration (SSA) has deemed the Veteran disabled since December 25, 2011, the day after his separation from service. However, the Board is not bound by SSA determinations. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (finding that an SSA determination is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). In sum, a TDIU is warranted from July 29, 2015, but not before. To this extent, the appeal is granted. REASONS FOR REMAND Entitlement to SMC based on housebound status is remanded. A claim for SMC is considered part and parcel of a claim for a TDIU. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (noting 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); see also Payne v. Wilkie, 31 Vet. App. 373 (2019) (SMC is an ancillary benefit the Board may address in the first instance when reasonably raised by the record, regardless of whether a formal claim has been filed). At his August 2021 Board hearing, the Veteran and his representative contended the Veteran's service-connected disabilities warrant assignment of special monthly compensation based on housebound status. As the Veteran's disability ratings currently stand, he cannot qualify for SMC at any point during the period on appeal. See 38 U.S.C. § 1114 (s) (requiring a service-connected disability rated as total and additional disability or disabilities ratable at 60 percent or more or evidence that by reason of service-connected disabilities, the Veteran is permanently housebound). However, a recently performed June 2020 VA examination suggests the Veteran's service-connected PTSD has worsened such that SMC may be warranted. See Comp. & Pen. Examination (PTSD), June 19, 2020 (finding the Veteran's PTSD symptomatology results in occupational and social impairment with deficiencies in most areas). Unfortunately, the Veteran's PTSD rating has not been updated to reflect this possible worsening. The question of whether SMC is warranted is remanded for the RO to consider once the Veteran's PTSD rating is reflected by the evidence of record. The matter is REMANDED for the following actions: 1. Review the Veteran's mental health treatment records, including the Veteran's June 2021 VA mental health examination, to ensure the Veteran's service-connected PTSD is rated according to current evidence of record. (Continued on the next page) 2. Then, adjudicate the claim still on appeal. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, Associate 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.