Citation Nr: 21067013 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-46 137A DATE: November 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from December 3, 2003, to January 31, 2016, is granted. From February 1, 2016, entitlement to a TDIU is moot. FINDINGS OF FACT 1. The Veteran submitted a claim for posttraumatic stress disorder (PTSD) on December 3, 2003. This claim was granted in an August 2014 rating decision, but the evidence indicates that this decision was not mailed to the Veteran until July 2017. 2. The Veteran perfected a timely appeal of the rating decision mailed to him in July 2017, and the appeal period therefore extends from December 3, 2003 to the present. 3. Affording the Veteran and the appellant the benefit of the doubt, since December 3, 2003, his service-connected disabilities prevented the Veteran from obtaining and retaining substantially gainful employment consistent with his educational and work experience. 4. From February 1, 2016, the Veteran was entitled to special monthly compensation (SMC) under 38 U.S.C. § 1114(s), and the claim for a TDIU is therefore moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU from December 3, 2003, to January 31, 2016, have been met. 38 U.S.C. §§ 1155, 5107. 5110; 38 C.F.R. §§ 3.400, 3.340, 3.341, 4.16. 2. From February 1, 2016, the issue of entitlement to TDIU is moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1963 to July 1968. The Veteran died in November 2019. The appellant is his surviving spouse. This case comes to the Board of Veterans' Appeals from an August 2014 rating decision that was mailed to the Veteran in July 2017, issued by the Department of Veterans' Affairs (VA) Regional Office. This decision granted service connection for PTSD and assigned a 70 percent rating, effective December 3, 2003. The Veteran disagreed with this decision, arguing that he should also have been assigned a TDIU. A December 2017 rating decision found that the claim for a TDIU was moot, because the Veteran had a 100 percent rating, and there was no potential entitlement to an earlier effective date. In a June 2019 Board decision, the Board found that the issue of entitlement to a TDIU was not moot, because there was still the possibility to entitlement to greater SMC based on an award of TDIU, pursuant to Bradley v. Peake, 22 Vet. App. 280 (2008). The Board found, however, that entitlement to a TDIU was not warranted, because the Veteran's service-connected acquired psychiatric disorder did not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. A May 2020 Joint Motion for Remand vacated this decision. It stated that the Board had erred by saying that a TDIU raised under Rice required that the Board consider only the disabilities on appeal when TDIU was raised, while a "traditional TDIU" required the Board consider all of the Veteran's service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). It stated that VA was required to consider the effect of combinations of disability even in this case, citing 38 C.F.R. § 4.15 and Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In an October 2020 Board decision which was amended in November 2020, the Board granted SMC under 38 U.S.C. § 1114(s). It stated that the Veteran had met the criteria for SMC under 38 U.S.C. § 1114(s) as of February 1, 2016, which was the date of the Veteran's claim for an increased rating from which his TDIU claim arose, pursuant to Rice, 22 Vet. App. 447. The Board therefore found that the issue of entitlement to a TDIU was now moot. The appellant appealed this decision, and in June 2021, a Joint Motion for Partial Remand vacated the part of the Board's decision that found that entitlement to a TDIU was moot. It found that the Board failed to provide adequate reasons or bases to support its decision, because it did not address the appellant's argument that TDIU should be awarded for the period of December 2003 to February 2016. The issue has now been returned to the Board for readjudication. TDIU: The Period on Appeal The appellant contends that the Veteran was unable to maintain gainful employment since 2002 or 2003. She also argues that the current appeal period extends back to December 3, 2003, and therefore this should be the effective date for the award of a TDIU. The appellant's attorney has argued that the August 2014 rating decision was only promulgated in July 2017, and because this assigned a 70 percent rating, effective December 3, 2003, this is the period that is on appeal. After reviewing all of the evidence and the complex procedural history in this case, the Board agrees, and finds that the period on appeal before the Board does include the period of December 3, 2003, to January 31, 2016. The Veteran initially submitted a claim for service connection for PTSD and depression on December 3, 2003. The Veteran's claim was denied in October 2004 and May 2005 rating decisions. The Veteran appealed the denial to the Board, and in a September 2011 decision, the Board denied service connection for a psychiatric disability. This decision was then vacated in a November 2012 Joint Motion for Remand, because the Board had failed to adequately address the Veteran's lay statements or the private positive opinion. The issue was remanded by the Board in March 2014 for further development. After attending a VA examination in May 2014, at which the examiner provided a positive nexus opinion for the claim, the claim of service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, was granted in an August 2014 rating decision. The Veteran was assigned a 70 percent rating, effective December 3, 2003. This rating decision is in the record, but there is no notification letter indicating that the letter was sent to the Veteran. In February 2015, the Veteran reported that he had been notified by a VA nurse that he now had an 80 percent rating, but that he had not received notification of this increase. A VA employee noted that while there was an August 2014 rating decision in VBMS, there was no notification letter or award document. The first indication that this rating decision was actually mailed to the Veteran is from a July 2017 VA notification letter. The Board therefore finds that while government officials have a presumption of discharging their duties properly unless the presumption is rebutted, in this case, there is evidence indicating that the August 2014 rating decision was not sent to the Veteran, and he was not notified of the granted claim. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009). The appropriate date of this rating decision for procedural purposes is, therefore, July 2017, and not August 2014. In October 2016, the Veteran submitted a VA Form 21-526EZ Application for Disability Compensation, requesting new service connection claims and increased ratings for his already service-connected disabilities, including his acquired psychiatric disorder, to include PTSD and major depression. This claim is what was used by the Regional Office and the Board, in its prior vacated decision, for determining the effective date of the TDIU claim. Because the Board has now found that his prior appeal was still pending, this claim is not the appropriate basis for determining the period on appeal. The Veteran submitted a Notice of Disagreement with the July 2017 rating decision notification in September 2017, disagreeing with the effective date, stating that he requested entitlement to a TDIU as part of his claim for PTSD, and that he last worked full-time in December 2002. This Notice of Disagreement was therefore a timely appeal of the July 2017 rating decision. A Statement of the Case was issued in September 2018, and the Veteran submitted a Form 9 Substantive Appeal in October 2018. The Board therefore finds that this issue was continuously prosecuted since the Veteran's December 2003 initial claim, and the initial rating was properly appealed to the Board under the Legacy appeal system. The current period on appeal is therefore December 3, 2003 to the present. TDIU: December 3, 2003, to January 31, 2016. Affording the appellant the benefit of the doubt, the Board also finds that the Veteran met the criteria for a schedular award of a TDIU from December 3, 2003, to January 31, 2016. VA will grant a TDIU due to service-connected disorders when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Since December 3, 2003, the Veteran was in receipt of service connection for PTSD with depressive disorder, rated as 70 percent disabling. Since September 1, 2009, the Veteran was also in receipt of service connection for heart disease (10 percent, 30 percent from September 6, 2011), esophageal constriction (0 percent, 30 percent from November 21, 2015), right upper extremity peripheral neuropathy (20 percent), left lower extremity peripheral neuropathy (10 percent), right lower extremity peripheral neuropathy (10 percent), glaucoma (10 percent), hypertension (0 percent), and erectile dysfunction (0 percent). He therefore has met the criteria to be eligible for a schedular TDIU under 38 C.F.R. § 4.16(a) from December 3, 2003, to January 31, 2016. In an April 2017 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he had worked in railcar moving for 40 hours per week from January 1996 to December 2002. He noted he had completed four years of high school education. He wrote that his service-connected ischemic heart disease, diabetes mellitus, and PTSD prevented him from securing or following substantially gainful employment. An April 2003 psychiatric evaluation found that the Veteran was having severe anxiety about a recent automobile accident, as well as intrusive memories about his time in Vietnam. He had emotional numbing, difficulty thinking about the future, difficulty sleeping, problems with irritability and anger, and increased problems with authority and coworkers. The psychiatrist wrote that these problems affected his safety and ability to handle the stressors of his job, and this resulted in his taking an early retirement. In July 2003 he was also found to have lack of motivation, lack of energy and ambition caused by depression, and he was becoming more withdrawn and isolated. In October 2004, the Veteran reported that he last worked in December 2002 and that his PTSD prevented him from working. Counseling records from 2003 and 2004 show symptoms of poor sleep, low motivation, depression, forgetfulness, low energy, concentration problems, anxiety, flashbacks, isolation, and difficulty maintaining conversations. An August 2009 clinical assessment found continued problems with anger, communication, and mood swings. At a May 2010 VA examination, the Veteran was difficult to interview because he was very talkative, his thoughts were poorly organized and tangential, and he had to be frequently redirected. He reported that his mood could change rapidly, and he was easily irritated and angry, but he did have some hobbies. He reported having some suicidal ideation, but had not attempted suicide. The Veteran reported that he was not able to manage the bill paying, and his wife had to manage all of their finances. In June 2011, the Veteran reported that work was a problem for him because of his anger, and that when he would be called into the office, he would "bristle up," ready for a fight, and would often get into arguments with coworkers and generally avoid other people. During a May 2014 VA examination, the Veteran reported that he had worked for Arm and Hammer for more than 30 years, but was often reprimanded for his anger and verbal lashing out, and that this led to having to leave the job. The examiner found reduced reliability and productivity. The Board therefore affords the Veteran the benefit of the doubt and finds that this evidence does indicate that the Veteran left his job in 2002 due in large part to his increasing anger, irritability, inappropriate behavior, isolative tendencies, and inability to socialize or work with others, which was caused by his service-connected PTSD. The April 2003 private psychiatric evaluation specifically found that the Veteran's PTSD symptoms were a large part of the reason why he had to stop working, and the Board finds her report to be consistent with the other evidence of record. This evidence indicates that the Veteran's symptoms caused by his PTSD with depressive disorder as likely as not did prevent him from being able to obtain or maintain any gainful employment for this entire period, and the Veteran's ability to maintain employment was only further limited by the additional physical disabilities for which he was granted service connection in 2009. The Board therefore finds that the preponderance of the evidence shows that it is as likely as not that the Veteran's service-connected disabilities prevented him from being able to maintain any gainful employment from December 3, 2003, to January 31, 2016, and the claim is granted. TDIU: Issue is Moot from February 1, 2016 Since February 1, 2016, the issue of entitlement to a TDIU is moot. The Court of Appeals for Veterans Claims 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), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result 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 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. This duty to maximize benefits requires VA to assess all of a veteran's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. Bradley, 22 Vet. App. at 294 SMC is payable at a specified rate to a veteran under 38 U.S.C. § 1114(s) when a veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s). In this case, a total rating for the Veteran's service-connected ischemic heart disease was granted effective February 1, 2016. The Veteran was also already in receipt of a 70 percent rating for PTSD. Because the Veteran had a single service-connected disability rated as total and had an additional service-connected disability that was independently ratable at 70 percent, the criteria for SMC under 38 U.S.C. § 1114(s) were met, since February 1, 2016. As the Veteran was granted SMC at the (s) level, as of February 1, 2016, entitlement to a TDIU since February 1, 2016 is moot. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.