Citation Nr: 21065260 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 13-21 283 DATE: October 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 23, 2016, is granted. Entitlement to a TDIU rating from June 23, 2016, is dismissed as moot. Entitlement to special monthly compensation (SMC) at the housebound rate from August 2, 2010, to June 22, 2016, is granted. FINDINGS OF FACT 1. Prior to June 23, 2016, the Veteran could not obtain or retain substantially gainful employment due to his service-connected posttraumatic stress disorder (PTSD). 2. From June 23, 2016, the Veteran was in receipt of a combined 100 percent schedular disability rating in addition to SMC at the housebound rate. 3. From August 2, 2010, to June 22, 2016, the Veteran had a TDIU rating based on a single service-connected disability plus additional service-connected disabilities having a combined rating of at least 60 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU prior to June 23, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 2. Entitlement to a TDIU rating from June 23, 2016, is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 3. The criteria for entitlement to SMC at the housebound rate from August 2, 2010, to June 22, 2016, have been met. 38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. §§ 3.102, 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1969. He died in February 2019. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for PTSD and denied him a TDIU rating. In June 2017 and March 2021, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. Specifically, the Board remanded the claim for the AOJ to supplement the record with any outstanding social security administration medical records, VA treatment records, and to provide an opportunity for the Appellant to submit another VA Form 21-8940. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives, and the claim is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a TDIU prior to June 23, 2016, is granted. The Veteran asserted that his service-connected PTSD, alone, rendered him unemployable. See September 2010 VA Form 21-8940. The Board notes that the Veteran filed his claim for a TDIU rating while pursuing service connection for his PTSD. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis solely on his PTSD disability. From August 2, 2010, to June 22, 2016, the Veteran's PTSD has been rated at 70 percent disabling. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his PTSD. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran has alleged that he cannot work because of his service-connected PTSD. See Hearing Tr. at 8. As to education, the Veteran's highest level of education completed was two years of undergraduate studies. See September 2010 VA Form 21-8940. He also completed training at a police academy in 1981. See August 2011 VA Form 21-8940. As to his employment, the Veteran has mainly held security enforcement positions throughout his career. He worked as a police officer for 18 years before working as a security guard for a retail store. See June 2016 VA examination report. He quit his job as a security guard in anticipation of his termination from employment. See July 2013 VA Form 9. He noted routine anger issues he had at work that forced his move to a midnight shift before he quit. See September 2010 VA examination report. His jobs were physical in nature; sedentary work was not an option. See July 2013 VA Form 9. The Board finds that his education and employment show that he was most suited for employment in the security/policing profession. The Veteran's PTSD symptoms made it difficult to effectively perform the duties required of a security or police professional. Significantly, the Veteran's PTSD causes anger, hygiene deficiencies, sleep disturbances, auditory hallucinations, and periods of "zoning-out" that are not conducive to effective performance. The record shows that the Veteran's anger causes him to inappropriately raise his voice at others without provocation as well as throwing items to relieve anger. See September 2010 VA examination report, June 2016 VA treatment records, September 2020 Spouse's Letter. His PTSD reduces motivation causing an inability to maintain personal hygiene for days, even a month at a time. See September 2010 VA examination report, June 2016 VA treatment records. His sleep was constantly interrupted due to nightmares, which, in turn, would make him fall asleep on the job. See July 2013 VA Form 9. He would sometimes enter periods of "zoning-out" where he would hallucinate hearing people speaking Vietnamese, have flash backs, and be non-responsive. See September 2010 VA examination report, February and November 2011 VA treatment records, and September 2020 Spouse Letter. When he became responsive, he would lose immediate recall and become argumentative. See February 2011 VA treatment records, September 2020 Spouse Letter. On one occasion of "zoning-out," he had an episode while he was driving and almost caused an accident. See September 2020 Spouse Letter. He stopped driving thereafter and remained fearful to drive again. Id.; see also February and November 2011 VA treatment records. The Board finds that the Veteran's PTSD alone rendered the Veteran unable to obtain or retain substantially gainful employment. Importantly, his anger, periods of "zoning-out," and inability to maintain hygiene are not conducive to any substantially gainful employment. Moreover, the inability to drive out of safety of himself and others on the road would bar the Veteran's ability to commute to work. Therefore, the Board finds that the Veteran's service-connected PTSD prevented him from obtaining and maintaining gainful employment. Accordingly, the criteria for TDIU have been met prior to June 23, 2016, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). 2. Entitlement to a TDIU rating from June 23, 2016, is dismissed as moot. The Veteran has had a schedular rating of 100 percent from June 23, 2016. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. Here, the record reflects the Veteran was awarded a 100 percent rating for his PTSD effective June 23, 2016. In a July 2018 rating decision, the Veteran was awarded SMC at the housebound rate, effective June 23, 2016. Thus, the Veteran is already in receipt of a 100 percent rating and SMC under § 1114(s) from June 23, 2016. As a result, the issue of entitlement to TDIU is moot and must be dismissed. 3. Entitlement to SMC at the housebound rate from August 2, 2010, to June 22, 2016, is granted. The Board must consider entitlement to SMC when raised. Akles v. Derwinski, 1 Vet. App. 118 (1991). The issue of entitlement to SMC at the housebound rate under the provisions of 38 U.S.C. § 1114(s) has been raised by the record. SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350(i). When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the 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. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley v. Peake, 22 Vet. App. 280 (2008)). Pursuant to the Order above, the Board has awarded TDIU based on the Veteran's PTSD alone, and the Veteran had additional service-connected disabilities independently ratable at a combined rating of 60 percent or more from August 2, 2010, to June 22, 2016the remaining period on appeal in which the Veteran has not been awarded SMC at the housebound rate. See 38 C.F.R. §§ 4.25, 4.26. Accordingly, as both elements of entitlement to SMC at the housebound rate have been shown, the Board finds entitlement to SMC at the housebound rate is granted from August 2, 2010, to June 22, 2016. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.