Citation Nr: 21077644 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 06-29 023 DATE: December 30, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 3, 2012 is granted. Special monthly compensation (SMC) under 38 U.S.C. § 1114(s) prior to August 3, 2012 is granted. FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran's service-connected physical and mental disabilities, which combine to an 80 percent or more disability rating since the day after active duty discharge, have produced impairment inconsistent with the kind of work consistency, quality, or proficiency required to obtain or follow substantially gainful employment. 2. Moreover, the relevant medical opinion evidence of record reasonably shows that the Veteran's service-connected psychiatric disability alone would have precluded substantially gainful employment throughout the period on appeal, and she also has had additional non-psychiatric service-connected disabilities that combine to at least a 60 percent rating since the day following active duty discharge. CONCLUSIONS OF LAW 1. The criteria are met for TDIU (on a schedular basis) prior to August 3, 2012. 38 U.S.C. §§ 1155, 5107 (West 2018); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2020). 2. The criteria are met for SMC under 38 U.S.C. § 1114(s) prior to August 3, 2012. 38 U.S.C. §§ 1114, 1155, 5107(b) (2018); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1978 to May 1978 and February 2003 to May 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision. Specifically, a review of the record shows TDIU and SMC have been reasonably raised during the pendency of multiple initial ratings appeals stemming from that rating decision and, therefore, will be considered part and parcel of those rating appeals. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The Board previously remanded TDIU in January 2013, September 2017, March 2019, and October 2020. 1. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 3, 2012 The Veteran claims her many service-connected conditions have caused impairment that is incompatible with maintaining substantially gainful employment. At the outset, the evidence establishes that the Veteran meets the schedular criteria for TDIU during the period on appeal because she was service-connected for major depressive disorder also diagnosed as posttraumatic stress disorder (PTSD) (rated 30 percent from May 24, 2004); chronic cystitis (rated 20 percent from May 24, 2004); gastroesophageal reflux disease (GERD) (rated 30 percent from May 24, 2004); right and left heel disabilities (rated 20 percent, each, from May 24, 2004); pinguecula (rated 10 percent from May 24, 2004); right and left hip disabilities (rated 10 percent, each, from June 6, 2005); and right and left knee disabilities (rated 0 percent, each, from May 24, 2004 and 10 percent, each, from September 21, 2010). Her combined rating was 80 percent from May 24, 2004 (the day after active duty discharge) and her right and left heel disabilities combined to at least a 40 percent rating as a "single disability" for purposes of this analysis. See 38 C.F.R. § 4.16(a). Moreover, her overall rating increased to 90 percent as of September 21, 2010. Consequently, the Board need only consider whether TDIU is substantively warranted (i.e., if her service-connected disabilities rendered her "unable to secure or follow a substantially gainful occupation" during the period on appeal). Id. To that end, the Board acknowledges that it does appear the Veteran continued to serve in the Puerto Rican National Guard and work in some capacity with the Puerto Rican State Police force through 2011. However, while her original October 2012 TDIU application leaves unclear whether she was working full-time during this period, clinical treatment records throughout the period on appeal suggest, at the very least, that she had many periods where she worked only part-timee.g., in March 2008 and November 2008 treatment records (noting part-time work), a September 2010 VA examination report (noting she was unemployed at the time), and October 2010 treatment records (indicating she worked for the National Guard as a part-time clerk). Moreover, translated letters and competent lay statements in the record suggest significant difficulty due to her various disabilities that interfered with her ability to perform past relevant work or learn new skillse.g., a June 2005 letter to a doctor saying she was not working and "physically and mentally [did] not have much energy," a September 2005 statement indicating her service-connected disabilities forced her to go back to school in hopes of rejoining the workforce, only to find that "emotional problems," "constant headaches," and "nightmares keep [her] awake, thus making it difficult for [her] even to go to school," October 2005 clinical records noting foot lesions along with service-connected heel spurs that prevented her from performing prior work in agriculture, etc. Crucially, an award of TDIU is an individualized determination, specific to a veteran's particular circumstances (e.g., their history, education, skills, and training) and does not require a showing of total unemployability. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, the salient question is whether they are capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, her actual employment status is not dispositive of the core issue on appeal. Here, the evidence of record, including personnel records and discharge paperwork, show the Veteran has a history of working in both sedentary (e.g., as a clerk or in administrative positions) and physical positions (e.g., in farming, laundry, or textile jobs). It is notable that there are limited medical records or opinions directly addressing the impact of her service-connected disabilities on her occupational functioning during the period on appeal. Those that do so, however, indicate a number of service-connected impairments that would have interfered with her physical and emotional functioning throughout this time. For example, November 2003 records show her calcaneal spurs were already causing gait limitation. June 2004 records show she had foot symptoms that caused knee, hip, and back pain which limited her physical activities. A December 2004 psychiatric examination shows she had been in "ambulatory psychiatric treatment in the last year since three months ago" and "had been feeling sad, depressed, with irritability, with loss of interest for daily living activities, with loss of energy, with insomnia, with inability to feel pressure in daily tasks, with inability to concentrate, with multiple physical complaints, with anxiety and with tension" in the prior year. She said her military occupational specialty (MOS) was working in "camp service and grave registration" and also that she "used to work in a 12-acres Coffee Plantation, as a farm worker and...Farmer Administrator." However, the Veteran reported that she could not continue that work after service due to her physical limitations. The examiner noted that her psychiatric symptoms were also "moderately interfering with [her] employment functioning" but did not elaborate. January 2005 records show her bilateral foot pain limited her ability to walk or stand for prolonged periods. As previously mentioned, a June 2005 letter indicates she was unemployed and had limited physical and mental energy and, in September 2005, she said that, while trying to retrain to rejoin the workforce, she could not even focus in school as a result of service-connected sleep impairment and mental health symptoms. October 2005 records show she was unable to continue working on the farm because of her foot lesions (and noted a formal diagnosis for heel spurs). January 2006 records show she was already receiving occupational therapy to increase her "functional level." March 2006 records confirm her foot pain worsened with exertion as well as prolonged walking and sitting (suggesting impairment to both physical and sedentary work capacity). A September 2010 examination report indicated her service-connected hip, knee, and foot (or heel) pain caused decreased mobility, problems with lifting and carrying, decreased strength in the lower extremity, and pain, ultimately resulting in "[i]ncreased absenteeism." A separate but contemporaneous examination report found her GERD caused "[s]ignificant" occupational impairment insofar as she couldn't eat the "ready-to-eat" military meals (MREs) and had to maintain a very specific diet "free of irritants." As it appears she has only ever worked a military capacity, this evidence appears to be high probative. October 2010 records indicate her chronic cystitis impaired her ability to travel, and although the examiner at the time did not believe this affected her ability to work, it certainly does limit the jobs she would qualify for, practically speaking. An August 2012 VA psychiatric examination report explicitly states that the Veteran's most recent psychiatric examination at the time was from 2004 and, therefore, that "today's evaluation will cover the time period since that date to present time, August 22, 2012." With that in mind, the examiner at the time noted she had a bachelor's degree (in an unspecified area of study) and worked for the Puerto Rico state police force as part of the National Guard, but was unable to continue working in 2011 due to her medical conditions and mental disorder. The examiner opined that her service-connected psychiatric conditions (then diagnosed as major depressive disorder and PTSD) caused total occupational and social impairment with symptoms like depressed mood, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and impaired impulse control. Although there are a number of January 2013 medical opinions addressing the occupational impact of service-connected conditions, nothing in those opinions or accompanying reports suggests the examiner considered or otherwise addressed the period on appeal specifically and, therefore, those opinions are not probative to this analysis. It is worth mentioning, however, that the Veteran did again indicate she stopped working for the Puerto Rican State Police force in 2011 due to a combination of physical and mental problems and that a January 2013 psychiatric examination continued to confirm severe psychiatric symptoms consistent with total occupational and social impairment. Similarly, a January 2013 service record shows that a Physical Evaluation Board (PEB) report from October 2012 confirms that the Veteran was medically unfit for duty due to psychiatric conditions (depressive disorder and PTSD) and a low back disability. The accompanying report also specifically indicated that her depression and PTSD limited "safe and effective performance of duty required by all soldiers," and that she could not live in an austere environment without exacerbating those conditions and requiring a permanent profile. Moreover, she could not perform physical fitness tests due to her knee, heel, and hip conditions (which were all service connected during the period on appeal). The report also stresses that it is "more likely than not that her mental condition will not improve enough to permit...eventual [return to duty] in the next [five] years, especially in combination with the other mental/physical conditions." These reports very visibly rely on evaluations of her functioning in a time window that extended into the period on appeal. At a bare minimum, they considered her functioning in a 12-month window ending sometime in 2012 (indicating they would have also considered her functioning prior to August of that year). Finally, the prior October 2020 remand explicitly ordered retrospective medical opinions addressing her occupational functioning prior to August 3, 2012 and a review of the VA examination request forms shows that the eventual September 2021 VA opinions obtained on remand specifically responded to prompts to that effect. Those opinions found her service-connected hip, knee, back, and heel disabilities precluded her from performing any meaningful degree of physical and sedentary work by preventing her from engaging in prolonged walking, standing, crossing of the legs, or sitting. Moreover, the examiner explicitly found her knee disability limited "even sedentary work" and that her GERD and cystitis would further limit the types of jobs she could take because she needed frequent and easy access to toilets and the ability to maintain a restricted diet with ingredients "not found everywhere." Most notably, however, a September 2021 psychiatric examiner opined that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas and that her symptoms caused "inconsistency in work performance due to fluctuations in symptoms, inability to relate with others, [and] high error rates in work due to concentration difficulties and memory problems." Moreover, she noted a "[l]ack of tolerance and argumentative behaviors" that interfere with "appropriate and necessary basic social interactions, including accepting instruction and criticism from supervisors" and felt these problems, along with her hypervigilance and argumentativeness, may be consistent with creating a toxic workplace environment for others. Under the circumstances, the Board finds that the relevant evidence describing her functioning prior to August 3, 2012 is certainly at least in relative equipoise as to whether the Veteran's service-connected disabilities caused impairment that would have been inconsistent with being able to perform the physical and mental tasks required to obtain or follow substantially gainful employment throughout the relevant appeal period. Therefore, the Board resolves all remaining doubt in her favor and finds the appeal must be granted. 2. Special monthly compensation (SMC) under 38 U.S.C. § 1114(s) Given the above award, the Board finds it also appropriate to address whether TDIU might be substantively support by a single disability alone such that SMC under 38 U.S.C. § 1114(s) might be warranted during the appeal period as well. Indeed, the opinions that address the Veteran's occupational functioning most directly and with the greatest detail are retrospective opinions from August 2012 and September 2021 VA psychiatric examiners, both of whom indicate in relatively certain terms that the Veteran's mental health would have precluded any kind of employment as a result of symptoms like near-continuous panic or depression affecting her ability to function independently, appropriately, and effectively, suicidal ideation, and other cognitive or mood deficits that would lead to inconsistency, high error rates, argumentativeness and social impairment. Moreover, the August 2012 examination report's explicit note that its finding covered a time window dating back to 2004 indicates this impairment was present throughout the appeal period. Therefore, the Board finds the evidence is also at least in relative equipoise as to whether the Veteran's service-connected psychiatric disability, alone, could have supported an award of TDIU during the relevant period and, given her other service-connected disabilities at the time still combine to more than a 60 percent rating, SMC under 38 U.S.C. § 1114(s), based on a disability rated as "total" with additional disabilities rated together as 60 or more percent disabling, should also be granted prior to August 3, 2012. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.