Citation Nr: 21075023 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-26 923 DATE: December 17, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. Since December 6, 2016, special monthly compensation (SMC) at the housebound rate is granted. REFERRED A disability rating in excess of 10 percent for radiculopathy of the right lower extremity is referred to the local VA Regional Office for adjudication. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected disabilities have prevented him from securing or following substantially gainful employment. 2. Since December 6, 2016, the Veteran's posttraumatic stress disorder alone may support his award of a TDIU. Since that date, he is additionally in receipt of a combined 60 percent or higher rating for separate and distinct disabilities affecting different anatomical segments and bodily systems. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. 2. Since December 6, 2016, the criteria for special monthly compensation at the housebound rate have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty September 1974 to October 1975 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office. In June 2019, the Veteran testified via videoconference before Veterans Law Judge (VLJ) Powell. A transcript of the hearing is of record. In October 2020, the Board notified the Veteran that VLJ Powell was no longer employed at the Board and was thus unavailable to participate in the decision on appeal. The Veteran was given the opportunity for a new hearing. In November 2020, he responded and opted to appear before a different VLJ for a new hearing. In August 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. As a matter of clarification, the Board has considered the arguments raised by the Veteran's attorney at the August 2021 hearing regarding the VA Regional Office's failure to award a higher rating for right lower extremity radiculopathy based on a recent VA examination report. In this regard, in the underlying October 2019 remand, the Board noted that in order to properly analyze the claim for a TDIU, the current severity of the Veteran's service connected lumbar spine disability needed to be ascertained, and ordered that an updated VA examination be conducted. This, however, does not place into appellate status the matter of a higher rating for radiculopathy of the right lower extremity. The Board's remand directive involving the lumbar spine disability was clearly explained as a means of determining the Veteran's entitlement to a TDIU; the Board did not take jurisdiction over any additional claims. Indeed, a claim for a higher rating for right leg radiculopathy has not been developed for appeal and there is no legal basis for asserting appellate jurisdiction over this claim. Doing so would violate the appellate process set forth by VA regulations. While a claim for a TDIU is part and parcel of an increased rating claim where a claimant asserts that his service-connected disabilities prevent him or her from working, the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) and subsequent progeny cases have not held that the reverse scenario is truei.e., that a request for TDIU automatically includes increased rating claims for the underlying service-connected disabilities that impact employability. The matter has thus been referred to the VA Regional Office for action as noted above. 1. A TDIU is granted. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. The Veteran filed a claim for a TDIU in February 2015, and the record shows that the schedular requirements of 38 C.F.R. § 4.16(a) have been met throughout the appeal period. His service-connected disabilities have consisted of the following: posttraumatic stress disorder (PTSD) (70 percent disabling from 12/6/16); lumbar spine disability (40 percent disabling throughout the appeal period); two right knee disabilities (30 percent and 10 percent disabling throughout the appeal period); right arm radiculopathy (20 percent disabling throughout the appeal period); tinnitus (10 percent disabling throughout the appeal period); cervical spine disability (10 percent disabling throughout the appeal period); and right leg radiculopathy (10 percent disabling throughout the appeal period). His combined disability rating has been 70 percent since August 29, 2013, prior to the filing of his February 2015 claim, and at least one disability has been rated at 40 percent or higher. See April 2017 Rating Decision Codesheet (most recent codesheet). Consequently, the Board must determine whether the service-connected disabilities have precluded him, or are capable of precluding him, from engaging in substantially gainful employment. The record shows that the Veteran completed high school. After military service, he worked as a plumber until 2007 when he could no longer continue due to his disabilities. He has not had additional education or training since becoming too disabled to work. On VA lumbar spine examination in April 2014, the examiner opined that the Veteran was very limited in activities due to pain arising from any change in position or with common activities such as stooping or bending. The examiner stated that the Veteran had to be extremely careful in attempting to bend to pick up even an object weighing less than ten pounds. On VA cervical spine examination in May 2015, the examiner opined that the Veteran was unable to perform any work that involved looking up or looking down. He could not perform any work that involved turning his head. He could not carry items heavier than ten pounds. On VA knee examination in May 2015, the examiner opined that, due to the service-connected knee disabilities, the Veteran was unable to walk for longer than five minutes at a time. He was unable to squat, kneel, or climb. On VA lumbar spine examination in May 2015, the examiner opined that, due to the service-connected lumbar spine disability, the Veteran could not walk for longer than five minutes. He could not bend forward at all. He could not twist, carry items heavier than ten pounds, squat, kneel, or climb. On VA neurological examination in May 2015, the examiner found that Veteran's radiculopathy of the right upper extremity (cervical radiculopathy) did not impact his ability to work. On VA knee examination in June 2015, the examiner stated that Veteran's disability prevented him from kneeling, squatting, and climbing ladders. He had to avoid stairs. On VA psychiatric examination in July 2016, the Veteran reported that he worked as a plumber for approximately 20 years, but was unable to work anymore because he could not crawl, climb ladders, or perform the physical tasks associated with the job. His PTSD caused decreased concentration, decreased interest and motivation, and anger/irritability. He did not have any friends and was not socially active. The examiner opined that the psychiatric disability caused occupational and social impairment with reduced reliability and productivity. On VA psychiatric examination in March 2017, the examiner found that symptoms of Veteran's psychiatric disability included mild memory loss, reduced attention and concentration, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work. His disability caused occupational and social impairment with reduced reliability and productivity. At the June 2019 hearing before VLJ Powell, the Veteran testified that he worked for 27 years as a plumber, and was forced to stop due to problems with his back and cervical spine. He began losing control of the feeling in his arms and legs, and became unable to crawl or climb. He further testified that his PTSD symptoms caused interpersonal conflicts, and that he would be unable to get along with others in a work setting due to his PTSD. A January 2020 Social Security Administration (SSA) Profile shows that the Veteran was awarded disability benefits with an onset date of June 2007, although the supportive determination report is not of record. On VA lumbar spine examination in February 2020, the Veteran reported that he stopped working as a plumber because he was unable to bend, lift, crawl, climb, reach, or walk more than 150 feet. He additionally had difficulty with sitting. He reported that his last employer hired an apprentice to work with him as a reasonable accommodation, but eventually could no longer afford to pay both of them. The examiner opined that the majority of the Veteran's symptomatology was related to non-service connected problems with the lumbar spine, and that the Veteran could perform an occupation not involving physical labor. At the August 2021 hearing, the Veteran, through his representative, argued that his PTSD symptomatology prevents him from pursuing a new career outside of plumbing or learning a new trade or job, and that even if he could, his service-connected physical disabilities are so limiting and extensive that he cannot perform work in any type of employment setting. The Veteran's wife additionally testified that his PTSD symptoms have worsened and that she is required to perform all tasks involved with running their household. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities have prevented him from securing or following substantially gainful employment throughout the appeal period. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Here, the economic component is met as he has not been employed in a substantially gainful occupation since 2007. The noneconomic component is also met. The Veteran has a limited education as he did not obtain a college degree and has no additional training or work experience outside of the plumbing profession. His service-connected physical disabilities cause significant physical limitations in lifting, bending, sitting, standing, walking, climbing, grasping, and reaching. The May 2015 VA cervical spine examiner determined that the Veteran cannot perform work involving looking up or down or turning his head, which implicates employment in virtually any setting. VA examiners have further found that the Veteran has great difficulty with, or is precluded from, bending forward, lifting more than ten pounds, walking for more than five minutes, sitting for prolonged periods, twisting, squatting, kneeling, or climbing. Further, his service-connected PTSD causes impairments in memory and concentration, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work. Both VA psychiatric examiners opined that the PTSD has caused occupational and social impairment with reduced reliability and productivity. As such, the record clearly establishes that the Veteran is unable to perform in his former profession as a plumber due to his service-connected physical disabilities. Additionally, due to his PTSD symptomatology, and his inability to sit for prolonged periods, turn his head, or look up or down, he is further precluded from performing non-physical employment. The Board thus finds that the Veteran has been unable to sustain substantially gainful employment throughout the appeal period. An award of a TDIU is warranted. 2. SMC at the housebound rate is granted, effective December 6, 2016. Given the award of a TDIU herein, VA's duty to maximize a claimant's benefits requires additional consideration of whether the Veteran's disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. He is not currently receiving SMC(s). SMC(s) may be awarded where a veteran has a total schedular rating based on multiple disabilities, but one of the disabilities might support a TDIU rating on its own, and the remaining disabilities can combine to form an additional 60 percent rating. A TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, so long as the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). The single disability requirement of SMC(s) means one disability. The rater cannot use 38 C.F.R. § 4.16(a) to "build" a single disability. Id. During the appeal period, the Veteran has had one disability, PTSD, rated at or above 60 percent, thus meeting the rating threshold for TDIU based on a single disability. See April 2017 rating decision codesheet showing PTSD rated as 70 percent disabling since December 6, 2016. The Board will thus consider whether the Veteran's PTSD alone can support the award of a TDIU since December 6, 2016. If so, he would additionally be entitled to SMC(s) for this time period, which would provide a greater benefit than what he is receiving currently. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that Veteran's PTSD alone would support a finding of a TDIU since December 6, 2016. This is illustrated by the July 2016 and March 2017 VA examination reports, as well as the June 2019 and August 2021 hearing testimony; there is no evidence to the contrary. Both VA examiners found the Veteran's PTSD is manifested by a variety of symptoms, including depression, anxiety, panic attacks occurring more than once a week, chronic sleep impairment, disturbances of motivation and mood, suicidal ideation, social isolation, anger, an inability to be in public, suspiciousness, memory loss, a flattened affect, disturbances of speech, and disturbances of mood. His PTSD has been found to cause difficulty in establishing and maintaining effective work relationships, as well as in adapting to stressful circumstances, including work. Both VA psychiatric examiners opined that the PTSD has caused occupational and social impairment with reduced reliability and productivity. As for the 60 percent component of SMC(s), the disabilities that combine to 60 percent must be "separate and distinct" and involve "different anatomical segments or bodily systems" than the single disability independently ratable at 100 percent. 38 C.F.R. § 3.350(i)(1). Here, the Veteran's remaining service-connected disabilities since December 6, 2016 include the following: lumbar spine disability (40 percent disabling); two right knee disabilities (30 percent and 10 percent disabling); right arm radiculopathy (20 percent disabling); tinnitus (10 percent disabling); cervical spine disability (10 percent disabling); and right leg radiculopathy (10 percent disabling). These disabilities are separate and distinct from PTSD and result in separate symptomatology. Combining them pursuant to 38 C.F.R. § 4.25 satisfies the requirement for a separate 60 percent or higher rating since December 6, 2016. As the Veteran's PTSD alone can support the award of TDIU since December 6, 2016, and he is additionally in receipt of a combined 60 percent or higher rating for separate and distinct disabilities affecting different anatomical segments and bodily systems since that date, SMC at the housebound rate is warranted as of December 6, 2016. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.