Citation Nr: 21066548 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-07 106 DATE: November 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to a combination of service-connected disabilities is granted from August 1, 2015 through March 10, 2021, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The most probative evidence of record establishes that the Veteran was no longer employed full-time as of August 1, 2015. 2. The most probative evidence of record establishes that it is at least as likely as not "factually ascertainable" that, from August 1, 2015 through March 10, 2021, the Veteran's service-connected disabilities, considered in combination, were productive of functional impairment which precluded substantially gainful employment consistent with his high school education and occupational experience as a clerk and driver for a school district. 3. The Veteran has been in receipt of a 100 percent disability rating for his service-connected prostate cancer effective March 11, 2021, and he has also been in receipt of special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114 (s) effective from March 11, 2021. CONCLUSION OF LAW The criteria for a TDIU due to a combination of service-connected disabilities have been met for the period on appeal August 1, 2015 through March 10, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1968 to April 1971, with service in the Republic of Vietnam from August 1970 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). A March 2021 rating decision granted service connection for prostate cancer associated with herbicide exposure and assigned a 100 percent evaluation effective March 11, 2021, which is still in effect. In this regard, a grant of a 100 percent disability evaluation does not always render the issue of entitlement to a 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 under 38 U.S.C. § 1114 (s) if a veteran has a 100 percent disability rating for a single service-connected disability, and VA finds that a TDIU is warranted based solely on a disability or disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)). As noted above, Veteran is in receipt of a 100 percent disability rating, effective March 11, 2021, for his service-connected prostate cancer. A July 2021 rating decision also awarded SMC under the provisions of 38 U.S.C. § 1114 (s) effective March 11, 2021. Therefore, since the Veteran is already receiving the maximum benefit available from March 11, 2021, the issue of entitlement to a TDIU beginning on or after March 11, 2021 is rendered moot and this period is not for Board consideration. As to the issue of representation, in September 2020 and July 2021, more than 90 days after he was notified that his appeal had been certified to Board in July 2016, the Veteran submitted VA Forms 21-22a, Appointment of Individual as Claimant's Representative, in favor of Joseph Michael Woods, Esq, thereby revoking previous consent to representation by the Vietnam Veterans of America. Under 38 C.F.R. § 20.1304 (b), a request for a change of representative in an appealed case made more than 90 days after notification of certification to the Board must be made by motion to the Board on the basis of good cause. Although the Veteran has not made a motion showing good cause, as VA has already recognized and treated Joseph Michael Woods as the Veteran's representative, the Board will continue to recognize Joseph Michael Woods as the Veteran's representative. In July 2021, the Veteran's representative requested a 90 day extension of time to submit additional evidence or file a brief in support of the appeal. In September 2021, the Veteran's representative submitted additional argument and evidence, and the Veteran waived initial consideration by the Agency of Original Jurisdiction (AOJ) of this new evidence the AOJ had not reviewed in making a decision. As the requested 90 day extension has now elapsed, as the Veteran's representative has submitted argument and evidence in support the appeal, the Board may proceed with appellate review. In addition to the evidence submitted by the Veteran's representative in September 2021, which the Veteran waived AOJ review thereof, additional developed by VA has also been associated with the record subsequent the most recent adjudication of the claim in a February 2016 Statement of the Case (SOC). Neither the Veteran nor his representative have waived AOJ review of the additional evidence developed by VA associated with the record after the February 2016 SOC. Nonetheless, as entitlement to a TDIU due to service-connected disabilities is granted from August 1, 2015 through March 10, 2021 is granted below, to the extent allowed as a matter of law, a remand for AOJ consideration is not warranted as it would serve no useful purpose and is inappropriate where there is no possibility of any benefit flowing to the veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). 1. Entitlement to TDIU 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. § 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. §§ 4.16, 4.19. To meet the schedular requirements, there must be one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director, Compensation Service, for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The United States Court of Appeals for Veterans Claims (Court) interpreted "unable to secure and follow a substantially gainful occupation" under 38 C.F.R. § 4.16 (b) and also noted 38 C.F.R. § 4.16 uses the phrases "substantially gainful employment" and "substantially gainful occupation" and found these phrases were synonymous. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019) (footnote 4, citing Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016)). The Board notes that 38 C.F.R. § 4.16 (a) requires a Veteran to be unable to secure or follow a substantially gainful occupation, rather than secure and follow it, but finds the Court's analysis in Ray is applicable to the Board's analysis here. Thus, the phrase unable to secure or follow a substantially gainful occupation contains both economic and noneconomic components. Id. 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. Id. The non-economic component includes consideration of the veteran's history, education, skill, and training, consideration of the veteran's physical ability with possible relevant factors including the veteran's limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations, and consideration of the veteran's mental ability, including his limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. However, these factors are not a checklist, but, rather, discussion of these factors is only necessary when they are raised by the evidence. Id. Here, a claim for entitlement to a TDIU was received by VA on August 20, 2015. Thus, the rating period for consideration on appeal is from one year prior to the August 20, 2015 date of receipt of the claim, if it is factually ascertainable that an increase warranting a TDIU occurred during that period. Turning to the economic component, in the Veteran's August 2015 VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, he reported that he last worked full-time on July 31, 2015 and became too disabled to work on August 1, 2015. Also, of record is an October 2015 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from the Veteran's former employer, a school district, which reflected the Veteran last worked on July 31, 2015. Similarly, an October 2015 VA examiner documented the Veteran recently retired on July 31, 2015 and September 2019 VA examiner documented the Veteran retired in 2015 and had not worked since. Most recently, an August 2021 private examiner, Steven Etherton, D.O., reported the Veteran had a high school diploma and no further education. Thus, the record reflects, during the appeal period at issue, the Veteran was not employed as of August 1, 2015. Turning to the non-economic component, specifically as to the Veteran's education and employment, in his August 2015 VA Form 21-8940, the Veteran reported he had four years of high school education, and that he previously worked at clerk and driver from September 1998 to July 2015. Also, of record is a October 2015 VA Form 21-4192, from the Veteran's former employer, which reflects the Veteran performed custodial work as a clerk and driver from September 1998 to July 2015. An August 2016 VA treatment record documented the Veteran would be starting a computer class in November. A December 2018 VA treatment record documented as to the Veteran's education, the Veteran completed the 12th grade, and as to his employment history, he retired in July 2015 from a job as educational mail driver, which he did for 17 years, and prior to that, was he was a New Jersey Transit Bus driver. Additionally, although not dated proximate to the appeal period, a March 2014 VA treatment noted the Veteran worked as a clerk and delivered mail to various schools. Service connection has been established for prostate cancer, rated as 100 percent disabling effective March 11, 2021; other specified trauma and stress related disorder (formerly posttraumatic stress disorder (PTSD)), rated as 70 percent disabling effective February 19, 2003, and 30 percent disabling from July 1, 2020; diabetes mellitus, type II, with proliferative diabetic retinopathy and cataracts, rated as 10 percent disabling effective November 21, 2005, and 20 percent disabling from January 15, 2019; peripheral neuropathy of the right lower extremity and the left lower extremity, each rated as 20 percent disabling effective November 21, 2005; peripheral neuropathy of the left upper extremity, rated as 10 percent disabling effective November 21, 2005 and 20 percent disabling from August 29, 2019; and peripheral neuropathy of the right upper extremity, rated as 10 percent disabling effective November 21, 2005. During the pendency of the claim for TDIU, the Veteran's combined disability rating was 90 percent prior to July 1, 2020 and 80 percent from July 1, 2020 through March 10, 2021. Thus, the Veteran met the requirement that at least one disability must be rated at 40 percent or more, based on the combined ratings for diabetes mellitus, type II, with proliferative diabetic retinopathy and cataracts, bilateral lower extremity radiculopathy, and bilateral upper extremity radiculopathy, as disabilities with a common etiology, and a combined disability rating of 70 percent for the purposes of meeting the TDIU schedular threshold through the entire appeal period. 38 C.F.R. § 4.16 (a). After careful consideration, the Board concludes that the totality of the evidence of record is at least in equipoise, and with resolution of doubt in the Veteran's favor, is sufficient to establish that the Veteran is unable to follow a substantially gainful occupation consistent with his education and occupational history due to his service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, as to the Veteran's other specified trauma and stress related disorder (formerly PTSD), an October 2015 VA examiner found, as to the Veteran's psychiatric symptomatology, a mental condition had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The October 2015 VA examiner also documented the Veteran reported that had "worked long enough", had reached retirement age and the new job requirements were becoming "stressful". The October 2015 VA examiner also documented the Veteran denied formal reprimands or other difficulties while he was employed but also later indicated that he was falsely accused of inappropriate touching of a teacher but the charges were dismissed. The October 2015 VA examiner also found the Veteran had no obvious psychiatric signs of occupational impairment that would significantly impact his capacity for productive employment. Thereafter, a September 2019 VA examiner found the Veteran's psychiatric symptomology which was productive of occupational and 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. The September 2019 VA examiner also documented the Veteran spent his time doing errands with his wife, watching television as well as taking walks and exercising, which he found helpful in dealing with stress, and that a couple days a week he met friends at a local bar. Additionally, in an August 2021 private opinion, Kendra Gray, Ph.D., a psychologist, found the Veteran's other specified trauma and stressor related disorder prevented gainful employment and his mental health symptoms were present and of the same severity from the date of his August 13, 2015 claim and continued uninterrupted to the present. However, although the Veteran signed the VA Form 21-8940 on August 13, 2015, the application was received on August 20, 2015, which is the date of the claim. Additionally, in an August 2021 Residual Functional Capacity Evaluation, Kendra Gray, Ph.D., noted the Veteran would not stay focused to complete simple repetitive tasks and he would respond inappropriately frequently when subjected to the normal pressures and constructive criticisms of a job. Kendra Gray, Ph.D., also found the Veteran's other specified trauma and stressor related disorder was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. However, in weighing the evidence, the Board finds the October 2015 and September 2019 VA examiners' findings, specifically that his psychiatric symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication, or were productive of occupational and 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, respectively, which are contemporaneous each date of the appeal period and were conducted via a physical examination at that time, are more probative the August 2021 private opinion, from Kendra Gray, Ph.D., that the Veteran's other specified trauma and stressor related disorder prevented gainful employment from August 2015, made many years after each relevant date of the appeal period. Moreover, Kendra Gray, Ph.D., did not address the October 2015 and September 2019 VA examiners' findings. Indeed, Kendra Gray, Ph.D., documented she reviewed four VA treatment records, dated in April 2016, May 2017, December 2018 and February 2019, a July 2021 statement from the Veteran, and a July 2021 statement from his spouse. Thus, the opinion of Kendra Gray, Ph.D., cannot be relied upon as she did not review or address all pertinent medical evidence such as the October 2015 and September 2019 VA examiners' findings. Thus, entitlement to a TDIU solely due to service-connected other specified trauma and stress related disorder (formerly PTSD) prior to July 1, 2020 under 38 C.F.R. § 4.16 (a), or from July 1, 2020 for referral to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16 (b), is not warranted. Additionally, in September 2021, the Veteran's representative submitted the multiple articles, including articles regarding PTSD. However, these articles contained medical information that was general in nature and do not address the specifics of the Veteran's case. Further, the Veteran's VA treatments also reflect findings generally consistent the October 2015 and September 2019 VA examiners' findings. For example, a May 2015 VA treatment, which addressed the Veteran's psychiatric symptomology, documented the Veteran was getting ready to retire and his symptoms were under control on the current regimen. An April 2016 VA treatment record also documented the Veteran's adjustment to retirement and current PTSD symptoms were addressed, that medications were helping, in particular with sleeping and anxiety. The April 2016 VA treatment record also documented the Veteran lost a job in 1997 because he was having difficulty with passengers and that he still could not deal with the public and it had gotten worse since then. Also, a May 2017 VA treatment record also documented the Veteran was calm and engaging, and that he reported he was "pretty good" and "enjoying my retirement" and that he had a regular therapy sessions and was doing well with therapist and his PTSD symptoms were under control on the current regimen. A January 2019 VA treatment record documented, in part, the Veteran discussed triggers of PTSD by the news, trying to stay hopeful despite happenings in country/shutdown of government, that he had to travel alone due to his wife's health issues and he hoped to be able to take an inexpensive trip to Las Vegas for a few days, and was looking forward to an upcoming Vietnam get together but was anxious about the possibility of increasing memories/nightmares/PTSD symptoms. A May 2019 VA treatment record documented, in part, as to the evaluation and management of the Veteran's PTSD, his symptoms were under control and he was "trying to" enjoy his retirement. More recently, a February 2020 VA treatment record also documented the Veteran was assisted with processing feelings regarding his wife's condition and staying healthy himself and that he realized in retirement that he "needed to move around to stay healthy", was encouraged to attend the library for assistance with the internet, and that he continued to manage PTSD symptoms. A June 2020 VA treatment record documented the Veteran was assisted to identify and process feelings regarding the news lately, specifically regarding the COVID situation and New York and New Jersey requesting quarantines from other states and he would not be travelling or seeing family, and he was managing PTSD symptoms "as best as possible", and trying to keep structure in his day and stay hopeful. Also, a March 2021 VA treatment record documented, in part, the Veteran reported he was okay, everything was fine, and also noted the Veteran was calm and engaging, doing fairly at this time and had no urgent concerns or needs. As to the Veteran's diabetes mellitus, type II, with proliferative diabetic retinopathy and cataracts, an October 2015 VA examiner found, as to the Veteran's diabetes mellitus, type II, the Veteran had impaired fasting glucose tolerance, and this did not impact physical or sedentary activities. Thereafter, a September 2019 VA examiner found the Veteran's diabetes mellitus condition, and complications of diabetes mellitus, did not impact his ability to work. A September 2019 VA examiner also found the Veteran's eye condition did not impact his ability to work. As to the Veteran's peripheral neuropathy of the bilateral upper and lower extremities, VA treatment records dated in August 2016, February 2017, August 2017, December 2017, January 2019, May 2019, generally documented, in part, the Veteran walked for exercise. However, a September 2019 VA examiner found the Veteran's diabetic peripheral neuropathy impacted his ability to work as he was unable to walk long distances, run, or stand for prolonged time periods. Notably, as to the combined impact of the Veteran's service-connected disabilities, Dr. Etherton, opined, in an August 2021 opinion, that after reviewing the evidence and consulting with the Veteran, it was his opinion that it was as likely as not that the combination of pain and limitations caused by the Veteran's service-connected impairments prevented him from being able to work. Specifically, Dr. Etherton found due to his neuropathy, the Veteran would be unable to stand for 10 minutes without needing to lean on something, that he was only able to walk 10 minutes, slowly and unassisted, that he could only sit for a total of 30 minutes, depending on the chair, and he could only lift or carry more than 10 pounds. Dr. Etherton also explained due to the Veteran's mental health symptoms and pain, he often had difficulty concentrating and staying focused, and because of his mental health symptoms and pain, he slept poorly at night. Dr. Etherton found the Veteran was unable to maintain substantially gainful employment as a result of his service-connected specified trauma and stressor related disorder, and bilateral upper and lower extremity peripheral neuropathy, and that this had been the case since at least August 13, 2015, the date of the Veteran's claim (although the Veteran signed the VA Form 21-8940 on August 13, 2015, the application was received on August 20, 2015, which is the date of the claim). Dr. Etherton explained the reasons for his conclusions based on review of the record, to include the relevant VA examination reports. Thus, Dr. Etherton's opinion is entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, for these reasons, the Board finds entitlement to a TDIU due to service-connected disabilities is warranted. Further, the Board determines that the evidence demonstrates that it is at least as likely as not factually ascertainable that the criteria for a TDIU were met due to a combination of the Veteran's service-connected disabilities from August 1, 2015. In this regard, the Board finds the Veteran was unemployed on July 31, 2015, as the date of July 31, 2015 was identified by the Veteran, in the August 2015 VA Form 21-8940, as his last date of employment, which is consistent with other evidence of record. Thus, the Board finds that August 1, 2015 is the first date of record upon which the Veteran could be shown to be unemployable, as the most probative evidence reflects he was employed prior to that date, specifically on July 31, 2015. The evidence of record also reflects it is factually ascertainable the Veteran experienced an increase in the symptomology of his service-connected disabilities in August 2015 which affected his employment. In this regard, a December 2015 letter from the Veteran's former employer, specifically from C. G., Chief of Administrative Services, for the school district, explained the Veteran's duties were to deliver and pickup mail from the schools as well as the Post Office and required him to venture out daily in all kinds of weather to perform his duties. In the December 2015 letter C. G. also noted, prior to the Veteran retiring from his job, he noticed he was slowing down a bit, and he and the Veteran discussed that the weather conditions, specifically the cold snowy winters, and very hot summers, were affecting his health, and that he also complained about the stress of the job requirements. Additionally, in a February 2016 statement, the Veteran reported he had medical and psychological issues and had difficulty with work as he got older in life and during other occasions. Similarly, in a statement received by in September 2021, the Veteran reported he worked for the school system as a clerk and driver from 1998 and 2015 and the work environment was stressful and became overwhelming towards the end. Additionally, in a statement, received by VA in September 2021, the Veteran's spouse reported the Veteran's attitude worsened over the years and that he became irritated at his coworkers or bosses over minor things and that he had a new boss towards the end of his employment that he did not get along with. Although the Veteran's service-connected disabilities have been shown to have impacted his employment prior to August 1, 2015, the evidence does not show that he was unemployable prior to August 1, 2015, as discussed above, the probative evidence record reflects he was gainfully employed until July 31, 2015. Further, the evidence of record does not reflect the Veteran's employment prior to August 1, 2015 consisted of marginal employment on a facts-found basis, as in the case of a protected environment such as a family business or sheltered workshop, as he was employed in a school district, nor has he asserted such. Indeed, in an October 2015 VA Form 21-4192, the Veteran's former employer, did not report any concessions had been made to the Veteran by reason of age or disability. The evidence of record also does not reflect the Veteran's employment prior to August 1, 2015 consisted of marginal employment on an objective basis. Specifically, in his August 2015, VA Form 21-8940, the Veteran reported a total of $62,000 of earned income for the past 12 months. Similarly, in an October 2015 VA Form 21-4192, the Veteran's former employer reported the Veteran earned $62,087.25 during the 12 months preceding last day of employment (before deductions). Thus, it is not factually ascertainable that the Veteran was precluded from substantially gainful employment as a result of his service-connected disabilities prior to August 1, 2015. Accordingly, entitlement to a TDIU prior to August 1, 2015 is not warranted. However, resolving reasonable doubt in the Veteran's favor, entitlement to a TDIU due to a combination of service-connected disabilities is granted from August 1, 2015 through March 10, 2021. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.