Citation Nr: A21019583 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 190920-32259 DATE: December 8, 2021 ORDER Entitlement to an earlier effective date for posttraumatic stress disorder has been withdrawn. Entitlement to service connection for a pulmonary condition, claimed as chronic obstructive pulmonary disease (COPD), is granted. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period following February 5, 2019, is moot. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period from November 22, 2016, to February 5, 2019, is granted. REMANDED Entitlement to total disability rating based on individual unemployability due to service-connected disabilities prior to November 22, 2016, is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision on the issue on appeal, the Veteran requested that his appeal of the issue of an earlier effective date for PTSD be withdrawn. 2. The evidence in at least in equipoise as to whether the Veteran's pulmonary condition, claimed as chronic obstructive pulmonary disease (COPD), is related to his conceded in-service asbestos exposure. 3. As of February 5, 2019, the Veteran's PTSD is rated at 100 percent and he is being awarded special monthly compensation (SMC) under 38 U.S.C. § 1114(s); therefore, the issue of entitlement to a TDIU after February 5, 2019, is rendered moot. 4. The Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment for the period from November 22, 2016, to February 5, 2019. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an earlier effective date for posttraumatic stress disorder by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for a pulmonary condition, claimed as chronic obstructive pulmonary disease (COPD) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The service-connected rating of 100 percent for PTSD and the grant of SMC under 38 U.S.C. § 1114(s) renders moot the appeal for a TDIU from February 5, 2019. Vettese v. Brown, 7 Vet. App. 31 (1994); Holland v. Brown, 6 Vet. App. 443 (1994). 4. The criteria for entitlement to a TDIU for the period from November 22, 2016, to February 5, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1958 to November 1968. The above-captioned claims were denied in a May 2019 rating decision. In the September 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the October 2019 hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the medical evidence of record indicates that in the past, the Veteran has received a diagnosis of multiple pulmonary conditions, the issue of entitlement to service connection for COPD has been expanded as noted above, consistent with Clemons. 1. Entitlement to an earlier effective date for PTSD A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the October 2019 hearing, the Veteran's representative indicated that the Veteran wished to withdraw the claim for an increased rating for his lower back disability. Because the Veteran, through his representative, has clearly indicated his wish to withdraw the issue, there remain no allegations of errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Accordingly, the Board does not have jurisdiction to review this issue and it is therefore dismissed. 2. Entitlement to service connection for a pulmonary condition, claimed as chronic obstructive pulmonary disease (COPD) Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When the evidence both for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that his COPD is related to exposure to asbestos during active service. Under the AMA, favorable findings made by the AOJ are binding on the Board. In the May 2019 rating decision on appeal, the AOJ made two favorable findings: (1) due to the Veteran's MOS as an Engineman, his occupational exposure to asbestos has been conceded; and (2) he has a current diagnosis of COPD, as confirmed by a treatment record dated January 31, 2018. The remaining question for the Board is whether the Veteran's COPD is related to his in-service exposure to asbestos. There is evidence weighing both in favor and against the Veteran's claim. The Veteran was afforded a VA examination in June 2017. The examiner opined that the Veteran's COPD was less likely than not related to his in-service asbestos exposure. The examiner indicated that the Veteran had a chronic history of smoking until 1982. While the Veteran's probable exposure to asbestos was noted, the examiner indicated that chest x-rays and PFT findings were not consistent with pulmonary fibrosis or asbestosis. The Veteran also submitted a private medical opinion from Dr. M. S. in November 2019. Dr. M. S. indicated that the Veteran suffered from both obstructive pulmonary disease and restrictive pulmonary disease. Ultimately, Dr. M. S. opined that while obstructive pulmonary disease such as COPD was not caused by asbestos exposure, the Veteran's restrictive lung disease, pulmonary fibrosis, was caused by asbestos exposure. Dr. M. S. noted that asbestos exposure was a known cause for restrictive lung disease. Rationale was provided for all opinions. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. Additionally, while the June 2017 examiner concluded that the Veteran's COPD was not related to asbestos exposure, this opinion was not rendered in consideration of the Veteran's restrictive pulmonary disease. A claim will be denied only if the preponderance of the evidence is against the claim. As noted above, if the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. For the reasons stated above, service connection is warranted for the Veteran's pulmonary condition. TDIU 3. Entitlement to total disability based on individual unemployability (TDIU) due to service-connected disabilities for the period following February 5, 2019 The Veteran was awarded a 100 percent rating for PTSD, effective February 5, 2019. The Court 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). 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). A grant of a 100 percent disability rating does not always render the issue of 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. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Here, the Veteran is in receipt of a 100 percent rating for PTSD and a 100 percent rating for chronic congestive heart failure. This has resulted in the assignment of SMC based on the presence of a service-connected disability rated as total, and a second service-connected disability rated as at least 60 percent. As such, because the Veteran already receives SMC, the TDIU claim is moot as of February 5, 2019. 4. Entitlement to a TDIU for the period from November 22, 2016, to February 5, 2019 The Veteran contends that a TDIU is warranted prior to February 5, 2019. As discussed in greater detail below, the analysis herein will be limited to the period from November 22, 2016, to February 5, 2019, as the Veteran did not meet the schedular requirement for a TDIU prior to November 22, 2016. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the period in question, the Veteran was in receipt of a 70 percent rating for PTSD, a 10 percent rating for chronic congestive heart failure, a 30 percent rating for right knee osteoarthritis, a 10 percent rating for tinnitus, and a noncompensable rating for bilateral hearing loss. Accordingly, the Veteran met the schedular requirements for TDIU for the period in question. For the reasons that follow, resolving all doubt in favor of the Veteran, the Board finds that a TDIU is warranted. The Veteran has submitted several VA Form 21-8940s Application for Increased Compensation Based on Unemployability in this matter. Notably, he has reported differing accounts as to the circumstances of his last employment. For adjudicative purpose, the forms collectively establish that he last worked in 2010 and that he was employed in some capacity by RC Communications. The Veteran has also consistently reported that his highest level of education was 8th grade, and that he went to refrigeration school for one and a half years. He also has consistently maintained that his PTSD caused the cessation of his employment, and also prevents him from securing and following a substantially gainful occupation. The forms, however, differ as to the hours the Veteran worked and the wages he earned. For instance, on an October 2010 VA Form 21-8940, the Veteran reported that he worked from 2000 to 2010 and earned up to $4000 a month. On an October 2017 VA Form 21-8940, the Veteran reported that he worked 30 hours per week from 1998 to 2009/2010 and earned $6,250 a month. On a February 2019 VA Form 21-8940, the Veteran reported that he worked 20 hours a week from January 1998 to January 2010 but earned no wages. Notably, the Veteran and his wife reported that RC Communications was a business that was started and operated by the Veteran, his wife, and brother. It offered the sale, installation, and servicing of telephones. The Veteran and his wife have also reported that the Veteran worked only when his PTSD symptoms would allow. As to the medical evidence of record for the period in question, there is very little evidence as to the functional impairment caused by his PTSD. The Veteran was afforded a VA PTSD examination in May 2017. At that time, the Veteran reported that he retired from the phone business 6 or 7 years prior due to his service-connected knee disability. The Veteran's PTSD symptoms were noted as: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting, and; suicidal ideation. The examiner opined that the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity. In addition, the sole VA PTSD examination for this period, the Board also considers the evidence suggesting that the Veteran had been unable to secure or follow substantially gainful employment for several years prior to the period in question. Specifically, the Board finds credible the testimony of the Veteran and his wife at the time of his October 2019 hearing. The Veteran testified that when he was last employed, he worked 1-2 days per week with his brother, as his PTSD symptoms allowed. He reported that sleep impairment and breathing problems rendered him unable to work on a daily basis. His wife added that the Veteran's depression also contributed to his functional impairment. As to medical evidence, while occurring prior to the period in question, a September 2010 VA treatment record indicated that the Veteran was unable to work and was permanently disabled due to his chronic PTSD symptoms. Additionally, the Board has considered additional functional impairment caused by the Veteran's other service-connected disabilities during this period. Notably, the Veteran's service-connected right knee disability was shown to cause a reduced capacity for tasks that require prolonged standing or walking, repeat bending, squatting, kneeling, or climbing. See June 2018 VA Knee and Lower Leg Examination. The evidence of record also shows significant functional impairment related to the Veteran's now service-connected pulmonary condition. Specifically, the Veteran's VA treatment records indicate that he has been on oxygen full-time since 2016. See Third Party Correspondence, submitted December 2, 2019. Finally, the Veteran's history, education, skills, and training, support a finding that he was unable to secure or follow substantially gainful employment for the period in question. As noted above, his highest level of education was 8th grade and one and a half years of refrigeration school. Further, there is no indication in the record that the Veteran possesses any transferable skills from prior employment that would allow him to secure and follow a substantially gainful occupation, given the functional impairment related to his service-connected disabilities. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation. The evidence establishes that the Veteran suffers severe functional impairment related to his PTSD; including depression, sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. Additionally, a VA treatment record from September 2010 indicated that the Veteran had already become permanently disabled and unable to work years prior to the period in question. Further, the Veteran's physical impairments such as limitations caused by his service-connected right knee disability and the necessity to use oxygen full-time since 2016, further contribute to his inability to secure or follow substantially gainful employment. Accordingly, a TDIU is warranted from November 22, 2016, to February 5, 2019. REASONS FOR REMAND Entitlement to a TDIU prior to November 22, 2016, is remanded. The Veteran also contends that a TDIU is warranted prior to November 22, 2016. Prior to November 22, 2016, the Veteran was in receipt of a 50 percent rating for PTSD, a 10 percent rating for tinnitus, and a noncompensable rating for bilateral hearing loss. Accordingly, the Veteran did not meet the schedular requirements for TDIU for the period in question. VA regulations provide that if a Veteran fails to meet the applicable minimum percentages in 38 C.F.R. § 4.16(a), he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16 (b), if it is shown he is indeed unemployable owing to his service-connected disabilities. In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration. Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996). As such, although the Veteran does not reach the disability requirements for TDIU, he may still be considered on an extraschedular basis. As noted above, the evidence of record, both lay and medical, indicate that the Veteran may have been unable to secure or follow substantially gainful employment dating back to 2010. Such evidence includes the September 2010 VA treatment record indicating that the Veteran was unable to work and was permanently disabled due to his chronic PTSD symptoms, and the lay evidence from the Veteran and his wife that although he was employed by the business they owned, he was only able to seldomly work as his PTSD symptoms allowed. In this case, the Board finds that there is evidence that raises the question as to whether the Veteran was capable of securing and following substantially gainful employment, in spite of not meeting the schedular requirements for a TDIU prior to November 22, 2016. As the Board is prohibited from awarding an extraschedular TDIU in the first instance, a remand is required to refer consideration of extraschedular TDIU to the Director of Compensation Service for the period in question. Thun v. Shinseki, 572 F.3d 1366 (2009). The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.