Citation Nr: 21071140 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-22 962 DATE: November 29, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability on an extraschedular basis for the period from October 31, 2009 to April 4, 2011 is denied. Entitlement to a total disability rating based upon individual unemployability for the period from April 4, 2011 to August 27, 2011 is granted. FINDINGS OF FACT 1. For the period from October 31, 2009 to April 4, 2011, the preponderance of the evidence does not indicate that the Veteran's service-connected disabilities, especially her PTSD, rendered her incapable of securing or following a substantially gainful occupation. 2. For the period from April 4, 2011 to August 27, 2011, the evidence is at least in equipoise as to whether the Veteran's service connected-disabilities, especially her PTSD, rendered her incapable of securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a total disability rating based upon individual unemployability on an extraschedular basis for the period from October 31, 2009 to April 4, 2011 have not been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. 2. The criteria for entitlement to a total disability rating based upon individual unemployability for the period from April 4, 2011 to August 27, 2011 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 2009 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2016, May 2021, and August 2021 rating decisions of a VA Regional Office (RO) concerning the Veteran's claim for an earlier effective date for the grant of increased ratings for her service-connected PTSD. In its July 2021 decision, the Board of Veterans' Appeals (Board) found that the issue of entitlement to TDIU had been raised by the record, and it remanded the claim for additional development. The Board finds that the RO substantially complied with its remand directives, and it may now proceed with adjudication. The Veteran asserts that her service-connected disabilities have rendered her unable to secure or follow a substantially gainful occupation. TDIU is assigned when a service-connected disability results in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). However, regulations provide that if the percentage requirements are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director of Compensation and Pension Services (DCPS) for extraschedular consideration. In this case, the Veteran is service connected for seasonal allergies, rated as noncompensable (zero percent disabling), effective October 31, 2009, and for PTSD. The Veteran's PTSD is rated as 50 percent disabling from October 31, 2009 to April 4, 2011, 70 percent disabling from April 4, 2011 to August 27, 2011, and 100 percent disabling thereafter. See August 2021 codesheet. Accordingly, from October 31, 2009 to April 4, 2011, the Veteran does not meet the criteria for schedular consideration for TDIU. In July 2021, the Board remanded the Veteran's claim for TDIU for extraschedular referral to DCPS. In a September 2021 VA memorandum, DCPS recommended a denial of the Veteran's claim. The Board is not bound by this determination and will consider the claim de novo. For the period from April 4, 2011 to August 27, 2011, the Veteran meets the criteria for schedular consideration for TDIU. From August 27, 2011 onward, the Veteran's PTSD is rated as 100 percent disabling. See August 2021 codesheet. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities, as assigned in this case, 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 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 the Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). 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 a Veteran's disabilities establish entitlement to special monthly compensation (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. Here, the Veteran's only other disability is for seasonal allergies, which are rated as noncompensable during the period on appeal. Therefore, the issue of entitlement to TDIU for the period from August 27, 2011 onward is moot, as there is no allegation that the seasonal allergies in and of themselves have caused unemployability. Turning to the evidence of record, during the Veteran's March 2010 VA examination for mental health disorders, the VA examiner found that her condition did not result in total occupational or social impairment. She was positive for sleep problems, anxiety, depression, and difficulty with family and social relationships; however, she was negative for more severe symptoms, such as suicidal ideation or hallucinations, consistent with a total disability rating. Additionally, the Veteran reported that she was able to perform her job as a bill collector, but she quit the position due to being yelled at frequently. March 2010 VA treatment records reflect treatment for severe depression, extreme emotionally volatility, panic attacks, mild agoraphobia, nightmares, and sleep problems, hypervigilance, and constant anxiety. The Veteran was negative for suicidal ideation. In an April 2011 lay statement, another friend of the Veteran stated that the Veteran had been depression, miserable, and anxious since leaving service. She stated that the Veteran was suicidal, emotionally volatile, and short-tempered. The Veteran had difficulty in crowds and was dependent on drugs. An April 2011 lay statement from the Veteran's father recounted similar symptoms, including depression, anger issues, and emotional volatility. In an April 2011 Notice of Disagreement (NOD) statement, the Veteran stated that she had been depressed with low appetite, emotionally volatile, constantly fearful or anxious, and frequently angry. She experienced panic attacks with shortness of breath and nausea. She experienced difficulties with maintaining her familial and social relationships and found it hard to be in crowds or to be interested in any activities. The Veteran also experienced sleeping problems and nightmares. In the Veteran's March 2013 TDIU application, she indicated that she worked full-time from January 2009 to January 2010. The Veteran indicated that she worked part-time (20 or more hours per week) from April 2010 to May 2010 or 2011. A May 2013 Request for Employment Information indicates that she worked full-time from November to December 2009 as a bill collector. An April 2020 response to a Request for Employment Information indicates that the Veteran worked approximately 30 hours a week in customer service from May 2010 to May 2011. A second response indicates the Veteran worked full-time from July 2011 to August 2011, but she ended her employment due to her PTSD. Social Security Administration (SSA) records, received December 2020, indicate that the Veteran asserted she had been unable to work since May 2011. She was found to have been incapable of working since May 1, 2011. For the period prior to April 4, 2011, the Board finds the preponderance of the evidence is against finding that the Veteran's service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation. The evidence of record indicates that she was working full-time during much of this period. While her PTSD caused functional impairment in her ability to work, the Board finds that this impairment is adequately contemplated by her 50 percent disability rating for the period in question. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim. Accordingly, the claim for an extraschedular TDIU for the period prior to April 4, 2011 is denied. For the period from April 4, 2011 to August 27, 2011, the Board finds that the evidence is at least in equipoise as to whether her service-connected disabilities, especially her PTSD, prevented her from securing or following a substantially gainful occupation. First, SSA found the Veteran incapable of working since May 1, 2011. It is unclear exactly how often the Veteran maintained full-time work during the period in question, but it does not appear to have been steady or sustainable, Additionally, the medical and lay evidence of record indicates that the Veteran's PTSD symptoms had become more severe and included emotional volatility, depression, anxiety, sleep problems, and, potentially, suicidal ideation. Based on these facts, the Board finds the evidence of record is at least in equipoise. Accordingly, the claim for TDIU for the period from April 4, 2011 to August 27, 2011 is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.