Citation Nr: 21076650 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-19 736A DATE: December 27, 2021 ORDER The August 14, 2021 Board decision denying a total disability rating based on individual unemployability (TDIU) is vacated. A TDIU is granted. Since September 30, 2015, special monthly compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. On July 26, 2021, the Veteran's attorney submitted a vocational expert opinion authored by Dr. B. in support of the appeal. 2. The vocational expert opinion of Dr. B. was not associated with the claims file until after the Board decided the appeal on August 14, 2021. 3. Throughout the appeal period, the Veteran's service-connected disabilities have prevented him from securing or following substantially gainful employment. 4. Since September 30, 2015, the Veteran's anxiety disorder with depressive symptoms 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. The criteria for vacatur of the Board's August 14, 2021 decision denying a TDIU have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. Throughout the appeal period, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. 3. Since September 30, 2015, 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 from June 1976 to July 1976, May 1, 1992 to May 9, 1992, and October 2001 to October 2002. He had additional service in the California National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office. In November 2018 and November 2020, the Board remanded the claim for further development. In August 2021, the Board denied the claim. As discussed below, the August 2021 decision must be vacated. 1. The August 14, 2021 Board decision denying a TDIU is vacated. The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.1000. Here, on July 26, 2021, the Veteran's attorney submitted a vocational expert opinion authored by Dr. B. in support of the appeal. The opinion of Dr. B. was not associated with the claims file prior to the Board's issuance of a decision on August 14, 2021, and thus was not considered by the Board in denying the claim. In October 2021, the Veteran's attorney filed a Motion to Vacate the August 14, 2021 Board decision based on the fact that the Board had not considered this evidence in the August 2021 decision, through no fault of the Veteran's. The Board agrees that the August 14, 2021 adjudication denied the Veteran due process of law. Thus, in order to prevent prejudice to the Veteran, the Board's August 14, 2021 denial of the claim for a TDIU must be vacated. A new decision will be entered as if the August 2021 decision had never been issued. 2. A TDIU is granted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. As determined by the Board in November 2018, a TDIU claim has been raised in this case. 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. Since January 31, 2012, throughout the entirety of the appeal period, the schedular requirements of 38 C.F.R. § 4.16(a) have been met as the Veteran's combined disability rating has been 70 percent or higher, and his psychiatric disability has been rated as 40 percent or higher. His service-connected disabilities consist of the following: anxiety disorder with depressive symptoms (70 percent disabling,), obstructive sleep apnea (50 percent disabling), status-post ventral hernia repair (20 percent disabling), tinnitus (10 percent disabling), hearing loss (10 percent disabling), and hernia scar (10 percent disabling). See November 2021 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 and did not attend college. Following discharge, he worked as a driver. He last worked in approximately 2005 and has not received other education or training before or since becoming too disabled to work. See VA Form 21-8940. On VA audiological examination in April 2013, the Veteran's hearing loss impacted his ability to work in that he required the use of hearing aids. His tinnitus had no impact on the ability to work. On VA skin examination in April 2013, the Veteran's hernia scar had no impact on his ability to work. On VA hernia examination in April 2013, the hernia caused no impact on the Veteran's ability to work. In several March 2015 private medical reports, Dr. H.-G. assessed the impact of the Veteran's psychiatric disability on his ability to work. She opined that due to his disability, he would miss three or more days of work per month, would need to leave work early three or more days per month, would have problems with concentration affecting simple tasks more than three days per month, and would respond inappropriately to normal pressures more than once per month. On clinical examination, his symptoms specifically included memory impairment, variable concentration, an inability to establish and maintain relationships, and difficulty in adapting to stressful circumstances, including work. Dr. H.-G. opined that the disability caused occupational and social impairment with deficiencies in most areas, including work. In an accompanying narrative report, Dr. H.-G. determined that the Veteran's psychiatric symptoms have been consistent since approximately 2012. She further described the pain and functional limitations caused by his service-connected hernia disability and scar documented in treatment records, as well as the difficulties caused by his hearing loss and tinnitus. She cited medical literature discussing the holistic impact of disabilities such as the Veteran's, and found they sufficiently render him incapacitated. Dr. H.-G. concluded that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his disabilities. On VA examination in October 2015 for sleep apnea, the examiner noted that the Veteran had excessive daytime sleepiness, which made it hard for him to function. On VA hernia examination in October 2019, the Veteran's hernia had no impact on his ability to work. On VA psychiatric examination in November 2019, the Veteran reported that he had not worked since having ventral hernia surgery due to continuing medical complications and mental symptoms. His psychiatric symptoms included suspiciousness, panic attacks, sleep impairment, speech impairment, impaired judgment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, suicidal ideation, and impaired impulse control. The examiner opined that the Veteran's anxiety disorder with depressive symptoms caused occupational and social impairment with reduced reliability and productivity. In a May 2021 private vocational assessment, Dr. B. reviewed the claims file and provided a detailed summary of pertinent medical evidence. She also summarized research studies describing the rates of absence and time spent off task that is generally tolerated by employers based on occupation. She opined that due to his combined physical and psychiatric disabilities, the Veteran would likely exceed acceptable thresholds in both areas. She further opined that he is unable to perform his prior work as a driver given that the safety requirements of the job require a certain level of concentration and focus, and because the Veteran would be unable to maintain the level of reliability required. She concluded that since 2012, he has been unable to perform any other type of competitive work for which he would be qualified based on education and training, as his psychiatric symptoms impair his ability to tolerate work stressors, complete simple work tasks, or attend work on a consistent basis. 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 2005. The noneconomic component is also met. The Veteran has a limited education as he did not obtain a college degree, has undergone no additional training since briefly working as a driver, and has little overall work experience. His hearing loss impacts work to the extent that he must rely on his hearing aids to hear clearly. While the VA examination reports indicate that his service-connected physical disabilities do not impact the physical activities contemplated by Ray, as explained by the private examiners and as supported by medical literature, the holistic impact of his pain and functional loss combined with his psychiatric symptoms significantly impairs reliability and productivity. Both private examiners concluded that since 2012, he has been unable to perform any type of competitive work for which he would be qualified based on education and training, as his psychiatric symptoms impair his ability to tolerate work stressors, complete simple work tasks, or attend work on a consistent basis. There is no evidence directly to the contrary of these reports. 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. 3. SMC at the housebound rate is granted, effective September 30, 2015. 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, anxiety disorder with depressive symptoms, rated at or above 60 percent, thus meeting the rating threshold for TDIU based on a single disability. See November 2021 rating decision codesheet showing anxiety disorder with depressive symptoms rated as 70 percent disabling since December 8, 2010. 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 include the following: obstructive sleep apnea (50 percent disabling since 9/30/15), status-post ventral hernia repair (20 percent disabling since 12/1/03), tinnitus (10 percent disabling since 3/11/08), hearing loss (10 percent disabling since 5/12/10), and hernia scar (10 percent disabling since 1/31/12). These disabilities are separate and distinct from anxiety disorder with depressive symptoms, 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 September 30, 2015. The Board will thus consider whether the Veteran's anxiety disorder with depressive symptoms alone can support the award of a TDIU since September 30, 2015. 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 anxiety disorder with depressive symptoms alone would support a finding of a TDIU since September 30, 2015. This is particularly illustrated by March 2015 report of Dr. H.-G. and the May 2021 report of Dr. B.; there is no evidence to the contrary of their findings. These examiners, as well as the November 2019 VA psychiatric examiner, found the Veteran's anxiety disorder with depressive symptoms is manifested by a variety of symptoms, including memory impairment, variable concentration, an inability to establish and maintain relationships, difficulty in adapting to stressful circumstances including work, suspiciousness, panic attacks, sleep impairment, speech impairment, impaired judgment, disturbances of motivation and mood, suicidal ideation, and impaired impulse control. The November 2019 VA examiner opined that the anxiety disorder with depressive symptoms has caused occupational and social impairment with reduced reliability and productivity, and the private examiners opined that his symptoms would result in a rate of absence and time spent off task in excess of that which would be tolerated by an employer. As the Veteran's anxiety disorder with depressive symptoms alone can support the award of TDIU since September 30, 2015, 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 September 30, 2015. 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.