Citation Nr: 21006391 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-60 798 DATE: February 4, 2021 ORDER From May 24, 2011, to June 3, 2016, entitlement to a 70 percent initial evaluation, but no higher, for service-connected posttraumatic stress disorder (PTSD) with bipolar affective disorder and general anxiety disorder (hereinafter, service-connected acquired psychiatric disabilities) for substitution or accrued benefits purposes is granted, subject to the applicable regulations concerning the payment of monetary benefits. From February 12, 2016, to April 18, 2016, entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) for substitution or accrued benefits purposes is granted, subject to the applicable regulations concerning the payment of monetary benefits. From April 19, 2016, to June 3, 2016, entitlement to a TDIU for substitution or accrued benefits purposes has been rendered moot and is dismissed. REMANDED Entitlement to a TDIU prior to February 11, 2016, for substitution or accrued benefits purposes is remanded. FINDINGS OF FACT 1. Affording the appellant the benefit of the doubt, the most probative evidence reflects that, from May 24, 2011, to June 3, 2016, the Veteran's service-connected acquired psychiatric disabilities were manifested by severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas, such as social relations, work, and mood, without total social impairment. 2. The most probative evidence reflects that the Veteran’s service-connected disabilities precluded him from securing and maintaining a substantially gainful occupation from February 12, 2016, to April 18, 2016. 3. The Veteran was in receipt of a 100 percent schedular evaluation from April 19, 2016, to June 3, 2016. CONCLUSIONS OF LAW 1. From May 24, 2011, to June 3, 2016, the criteria for a 70 percent initial evaluation, but not in excess thereof, for the Veteran’s service-connected acquired psychiatric disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130 and Diagnostic Code 9411. 2. From February 12, 2016, to April 18, 2016, the criteria for a TDIU were met. 38 C.F.R. § 4.16 (a). 3. The assignment of a 100 percent schedular evaluation renders the TDIU appeal moot from April 19, 2016, to June 3, 2016. 38 C.F.R. § 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1966 to April 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, among other actions, implemented a May 2013 provisional rating decision that denied the Veteran’s claim to establish service connection for PTSD and established service connection for bipolar affective disorder and general anxiety disorder; a 30 percent initial evaluation was assigned, effective from May 24, 2011. The Veteran expressed timely disagreement with these determinations, and the present appeal ensued. Unfortunately, during the pendency of the present appeal, the Veteran died in June 2016. Within a month of the Veteran’s demise, his widow filed an application to be substituted for her husband regarding the current appeal and a separate VA Form 21-22a (Appointment of Individual as Claimant's Representative) in favor of the same private agent who represented her late husband in these matters. In response, the Agency of Original Jurisdiction (AOJ) determined that the Veteran’s widow was an appropriate party to continue his appeal for the purposes of substitution and accrued benefits. These appealed issues were readjudicated by the AOJ in November 2016 and May 2017 rating decisions and subsequently certified to the Board. In light of above, the Veteran’s widow is now the appellant regarding the matters before the Board. In May 2019, the Board granted the appellant’s appeal to establish service connection for PTSD for and remanded the matters of entitlement to an increased initial evaluation for his service-connected acquired psychiatric disabilities and TDIU. The Board remand directives and the subsequent actions of the AOJ will be discussed in detail below. The appeal has been returned to the Board for further appellate consideration. Clarification of an issue on appeal On his August 2015 Notice of Disagreement, the Veteran indicated that his service-connected psychiatric disabilities negatively impacted his employability, raising the matter of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Although this issue was not separately adjudicated by the AOJ prior to the Veteran’s demise, it is considered part and parcel of his appealed claim seeking maximum benefits for his service-connected psychiatric disabilities. As such, the issue is properly before the Board with the appellant standing as an appropriate party to these benefits for the purposes of accrued benefits and substitution. 1. Entitlement to an initial evaluation in excess of 30 percent for service-connected acquired psychiatric disabilities for substitution or accrued benefits purposes Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant and her representative have asserted that the Veteran’s acquired psychiatric disabilities warrant an initial evaluation in excess of 30 percent, which is currently assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is warranted when there is occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. The Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM 5, and examinations conducted pursuant to the DSM 5 do not include GAF scores. As the Veteran’s claim for benefits was certified after August 2014, the DSM 5 criteria will be utilized in the analysis set forth below. Analysis The Board has reviewed all of the evidence in the Veteran's electronic file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The U.S. Court of Appeals for the Federal Circuit (the Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Initially, it bears noting that, at the time of the Board’s May 2019 decision that established service connection for PTSD, service connection had been established for bipolar affective disorder and general anxiety disorder, which had been merged by the AOJ for the purpose of assigning a 30 percent initial evaluation. As noted by the Board in the narrative of the May 2019 Remand section, the AOJ’s implementation of the Board’s service connection allowance for PTSD was intertwined with his appeal seeking an initial evaluation in excess of 30 percent for his other two service-connected acquired psychiatric disabilities. In implementing the Board’s allowance, the AOJ simply merged the Veteran’s award of service connection for PTSD with his two other service-connected acquired psychiatric disabilities and continued the assigned 30 percent initial evaluation. With the above criteria in mind and for the reasons stated below, the Board concludes that the Veteran’s symptoms of PTSD most closely approximate the criteria for a 70 percent initial evaluation, but no higher, throughout the entirety of the appeal period (from May 24, 2011, to June 3, 2016). The evidence of record concerning the severity and frequency of the symptoms associated with the Veteran’s service-connected acquired psychiatric disabilities and the functional impairment resulting from such stem from his VA treatment records, the reports of a May 2013 VA examination, records of treatment from a VA-affiliated Vet Center, and lay statements from the Veteran and the appellant. The Veteran initially sought VA psychiatric treatment in May 2011, shortly upon his release from incarceration. He reported experiencing irritability, chronic sleep impairment, anxiety, and alternating periods of depression and mania, the latter being manifested by reckless behavior, to include cocaine abuse, binge drinking, and extravagant spending. Provisional diagnoses of bipolar disorder, general anxiety disorder and “possible PTSD” were discussed, and the Veteran was prescribed medication for symptom management and enrolled in bi-weekly individual and group therapy sessions with VA and a VA-affiliated Vet Center. The Veteran’s VA treatment records are replete with his reports of experiencing the symptoms noted above and isolation, guilt, and hypervigilance. Diagnoses of bipolar affective disorder and general anxiety disorder were confirmed, and while a diagnosis of PTSD continued to be discussed, such was neither confirmed nor ruled out. On the contrary, the treatment records from the VA-affiliated Vet Center reflect several instances of a PTSD diagnosis rendered under the DSM-IV. These records also reflect the Veteran’s reports of additional psychiatric symptoms of a more severe nature, such as flashbacks, crying spells, impaired impulse control, obsessive thought processes, and suicidal ideation without plan or intent. The Veteran was provided a VA psychiatric examination in May 2013, and this examination report reflects that the Veteran reported many symptoms of mild severity that the examiner opined resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms that are controlled by medication. At the examination, the Veteran described experiencing intrusive thoughts, avoidance, sleep disturbance, irritability, isolation, a flattened affect, impulsive behavior, and a feeling of grandiosity. He denied hallucinations, obsessive ritualistic behaviors, delusions, paranoid behaviors, and suicidal or homicidal ideation. The Veteran reported that his more than 30-year his marriage to the appellant had been distant for the prior 15 years, and that such was “hot and cold.” He had regular contact with his two adult children, but he did not seek social interactions with many others outside the family setting. The Board acknowledges the May 2013 VA examination report; however, the probative weight of such is compromised by the fact that the May 2013 VA examiner did not have the benefit of reviewing the Veteran’s Vet Center records, as such had not been associated with the Veteran’s VA file at that time. This is critical in the present case in view of the fact that the May 2013 VA examiner ruled out a diagnosis of PTSD in favor of diagnoses of bipolar affective and generalized anxiety disorder. Had the May 2013 VA been provided the benefit of review of the totality of the evidence of record, perhaps the conclusions reach, particularly regarding the diagnoses rendered and resulting functional impairment may have been manifestly different. Further, while the May 2013 VA examiner attempted to differentiate between which symptoms were individually attributable to the Veteran’s service-connected bipolar effective disorder and general anxiety disorder, no such distinction could be made with regard to the functional impairment stemming from each disability. Further complicating this point, the May 2013 VA examiner’s failure to identify a diagnosis of PTSD would render any such differentiation of symptoms and functional impairment moot. Accordingly, the Board will perpetuate the AOJ’s merger of these disabilities for rating purposes, and thus, will consider all psychiatric symptomatology within the record to his service-connected acquired psychiatric disabilities. Mittleider v. West, 11 Vet. App. 181 (1998). While the Board observes that the frequency and severity of the Veteran’s PTSD symptoms reported at the May 2013 VA examination were found by the examiner to be mild, there is ample evidence of more severe symptoms and debilitating functional impairment within the Veteran’s Vet Center records, as noted above. Further, the Board observes that the severity and frequency of the Veteran’s psychiatric symptoms appear to be under-reported in the May 2013 VA examination report due, at least in part, to the Veteran’s two-year adherence to his prescribed medications. To this point, the United States Court of Appeals for Veterans' Claims (the Court) held that the ameliorating effects of medications may not be taken into account in determining a rating unless it is part of the applicable rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). As such, the Board concludes that the symptoms reflected in the VA treatment records and Vet Center records more accurately depict the Veteran’s complete psychiatric disability picture. Concerning the lay statements of the Veteran and the appellant, the Court has firmly held that a lay person, such as the Veteran, is competent to report matters which he experiences first-hand. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Board notes that such lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). In the present case, the Board concludes that the appellant’s consistent contact with the Veteran throughout their more than 30-year marriage renders her to be a person who has knowledge of the facts and circumstances of the Veteran's psychiatric state. The Board notes that the Veteran did not endorse all or nearly all of the symptoms typically associated with a 70 percent evaluation. There was no evidence showing, for example, spatial disorientation or homicidal ideation. Nevertheless, in assigning an evaluation, the Board is not required "to find the presence of all, most, or even some, of the enumerated symptoms." See Mauerhan, supra. On the other hand, the Veteran’s psychiatric symptoms and resulting functional impairment reported by the Veteran and the appellant in the treatment records and lay statements are indicative of serious symptoms, such as suicidal ideation, resulting in serious impairment of social or occupational functioning. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). If the Board finds that the positive and negative evidence relating to a Veteran's claim are in "approximate balance," then the placement of the risk of nonpersuasion on the VA dictates a finding in favor of the claimant. Ortiz v. Principi, 274 F.3d 1361 (2001). See also, Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Here there is positive evidence in support of the claim and negative evidence against it. Given this, the Board finds that the evidence is in a state of "equipoise." As such, affording the appellant the benefit of the doubt, the Board concludes that the most probative evidence concerning the severity and functional impairment resulting from the psychiatric symptoms attributable to his service-connected acquired psychiatric disabilities most nearly approximates the criteria for a 70 initial evaluation throughout the entire pendency of the appeal (from May 24, 2011, to June 3, 2016. Accordingly, to this extent, the benefit sought on appeal is granted. However, while the Veteran's service-connected acquired psychiatric disabilities did result in significant disability, the Board finds that the criteria for a 100 percent schedular evaluation are not met. For instance, symptoms typically associated with a 100 percent evaluation for PTSD are not demonstrated. For example, there was no evidence of gross impairment in thought processes, persistent hallucinations or delusions, or a persistent danger of hurting himself or others. Further, as stated above, the criteria for a 100 percent schedular evaluation are psychiatric symptoms resulting in total occupational and social impairment. As will be discussed below, it appears that the Veteran’s acquired psychiatric resulted in total occupational impairment from, at least, February 12, 2016, until his demise; however, the record reflects that the Veteran’s symptoms did not result in total social impairment. While the evidence clearly reflects that the Veteran’s symptoms caused him to struggle with periods of irritability, impaired impulse control, and isolation, there is uncontroverted evidence that the Veteran spent ample time with his wife and family members, to include limited instances in social settings and public places. While the Veteran and the appellant may have experienced marital difficulties, there is no evidence that he was wholly unable to engage in familial and/or social relationships with others due to his service-connected acquired psychiatric disabilities. To the extent that undertaking social situations and relationships were difficult due to the Veteran’s psychiatric symptoms, that functional impairment is accounted for in the 70 percent initial evaluation which the Board has found to be warranted. In sum, because the Veteran’s psychiatric symptoms do not result in total social impairment, assignment of a 100 percent initial evaluation is not warranted. Based on the foregoing, and resolving all doubt in the Veteran’s favor, the Board concludes that the Veteran’s psychiatric symptomatology most nearly approximated the criteria for a 70 percent initial evaluation, but no higher, for the entirety of the appeal period. 38 U.S.C. § 5107. 2. Entitlement to a TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. 38 C.F.R. § 4.16(a). It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Analysis Initially, the Board observes that the appellant’s appeal for a TDIU for substitution or accrued benefits purposes must be bifurcated based on the specific facts of the present case. As will be further discussed in the Remand section, the portion of this appealed issue from May 24, 2011, to February 11, 2016, must be remanded for further evidentiary and procedural development. The remaining portion of this appealed issue must be further bifurcated based on the AOJ’s allowances in a May 2017 rating decision. From February 12, 2016, to April 18, 2016 The record reflects that the Veteran was a high school graduate who also attended “some college” prior to and after his active duty. He then pursued, and thrived in, a career in commodities sales from 1971 to 1999, when he opened his own sales business, which he successfully ran until its closure for financial reasons in 2009. After his release from incarceration in May 2011, the Veteran took a job in housekeeping and custodial duties at a school. At some point, he joined the staff at the John Cochrane Division of the VA St, Louis Health Care System as an environmentalist who also provided housekeeping and custodial services. By virtue of the Board’s partial allowance of an increased initial evaluation for his service-connected acquired psychiatric disabilities, he met the schedular criteria for a TDIU at all times after May 24, 2011. In December 2017, the AOJ received a filing the Veteran’s most recent employer, the John Cochrane Division of the VA St. Louis Health Care System, reflecting that the Veteran resigned from his most employment in housekeeping on February 11, 2016. During his lifetime, the Veteran contended that this resignation was necessary due to the symptoms stemming from his service-connected acquired psychiatric disabilities. In a June 2017 submission, the appellant claimed that the Veteran resigned from his most recent employment due to residuals of lung cancer; however, this is not possible because the Veteran’s lung cancer was not diagnosed until mid-April 2016. The medical evidence dated between the Veteran’s February 2016 resignation and June 2016 death provide very little insight concerning the reason(s) for the former. Nonetheless, the Board observes the Veteran’s service-connected acquired psychiatric disabilities resulted in severe symptoms, such as impaired impulse control, irritability, isolation, flashbacks, crying spells, obsessive thought processes, and also suicidal ideation without plan or intent. Given that both of the Veteran’s post-service professions, commodities sales and housekeeping services, entail interpersonal relationships and working in close proximity with others, the Board concludes that the Veteran’s deteriorating psychiatric state likely negatively impacted his employability to the extent that he could no longer function in the worklike settings of his prior and trained professions. Accordingly, entitlement to a TDIU is warranted from February 12, 2016, to April 18, 2016, and to that extent, the appellant’s appeal is granted. From April 19, 2016, to June 3, 2016 On June 7, 1999, VA's General Counsel issued VAOGCPREC 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114 (s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). In light of the holding in Bradley, which takes a position contrary to the one reached in the precedent opinion, the General Counsel withdrew the June 1999 precedent opinion in November 2009. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VAOGCPREC 6-99. In this case, in a May 2017 rating decision, the AOJ granted service connection for lung cancer and nodal metastatic, each evaluated 100 percent disabling, and established SMC at the housebound level SMC under 38 U.S.C. § 1114 (s) – all awards effective from April 19, 2016. Therefore, application of Bradley and/or Buie for consideration of entitlement to SMC would not be fruitful, and as noted in Green, the appeal for a TDIU from April 19, 2016, to June 3, 2016, is rendered moot and is dismissed. REASONS FOR REMAND 1. Entitlement to a TDIU from May 24, 2011, to February 11, 2016, for substitution or accrued benefits purposes, is remanded. The evidence of record regarding the Veteran’s employment status May 24, 2011, to February 11, 2016, is tenuous. Particularly, while the appellant has asserted that the Veteran was employed as a janitor at a VA facility from June 2011 to December 2015, with the last few months being “part-time,” Vet Center records from January 2013 and the May 2013 VA examination report reflect that the Veteran was unemployed. On remand, these inconsistencies must be clarified by the AOJ. The matters are REMANDED for the following actions: 1. The AOJ must contact the appellant and request that she identify any outstanding evidence pertinent to the Veteran’s employment status from May 2011 to February 11, 2016, to include evidence showing that his occupation may have been less than substantially gainful at any point during that period. Any identified records must, with the appellant’s assistance, be obtained and associated with the file. 2. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the appeal for a TDIU from May 24, 2011, to specifically include collecting and verifying information that concerns the Veteran’s complete occupational history, and obtaining a retrospective medical opinion, if necessary. 3. Thereafter, the AOJ must adjudicate the TDIU issue in light of any additional evidence added to the record. If the benefit is not granted to the fullest extent, the appellant and her private agent must be furnished with a copy of the readjudication and afforded an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.