Citation Nr: 21008258 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-39 193 DATE: February 12, 2021 ORDER From January 2, 2015, entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. From December 2, 2016, entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is granted. FINDINGS OF FACT 1. From January 2, 2015 (the date the Veteran filed the instant claim for a TDIU), he met the schedular criteria for a TDIU, and his service-connected posttraumatic stress disorder (PTSD) and residuals of adenocarcinoma of the prostate rendered him unable to secure or follow a substantially gainful occupation. 2. From December 2, 2016, the Veteran was in receipt of a single service-connected disability rated as total (in the form of a TDIU based on the collective impact of his service-connected PTSD and prostate disability) with additional service-connected disabilities independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. From January 2, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16. 2. From December 2, 2016, the criteria for SMC under 38 U.S.C. § 1114(s) have been met. 38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to November 1968. This appeal comes to the Board of Veterans’ Appeals (Board) from multiple rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Notably, in a May 2015 rating decision that was appealed by the Veteran, the RO denied entitlement to a TDIU. The Board remanded this appeal for evidentiary development in March 2019 and again in October 2020. In addition to the Veteran’s TDIU claim, the Board also remanded the issues of entitlement to service connection for sleep apnea, hypertension, and residuals of a stroke. These claims have all since been granted in full by the RO, and thus are no longer on appeal. The Board notes that, shortly before the Board issued its October 2020 remand, the Veteran’s lawyer submitted a VA Form 10182 indicating the Veteran wished to opt in to the Appeals Modernization Act (AMA). The Board was in the process of vacating its October 2020 remand when the RO, of its own volition, granted two of the claims on appeal. The Board then chose not to vacate the original appeal stream, as such would not benefit the Veteran, and thereafter a Supplemental Statement of the Case (SSOC) was issued in November 2020 readjudicating the TDIU issue. The Veteran did not thereafter choose to opt in to AMA. Thus, the Board will continue with the TDIU claim under the Legacy system (and in fact is granting the Veteran’s claim consistent with his contentions in full). 1. Entitlement to a TDIU The Veteran contends his service-connected PTSD and prostate disability rendered him unable to secure or follow a substantially gainful occupation throughout the appeal period. For the following reasons, the Board agrees a TDIU is warranted. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). This appeal stems from a January 2, 2015 claim filed by the Veteran in which he alleged he was entitled to a TDIU. As of that date, service connection was in effect for PTSD (rated as 70 percent disabling); residuals of adenocarcinoma of the prostate (40 percent disabling); prostatectomy scar (10 percent disabling); and impotency (noncompensable). The Veteran’s combined rating was 80 percent; the schedular criteria for TDIU was satisfied. See 38 C.F.R. § 4.16(a). The Board further notes that, from December 2, 2016, the Veteran was in receipt of additional disability compensation in the form of an increased 60 percent rating for his prostate disability; a 50 percent rating for obstructive sleep apnea; a 20 percent rating for residual left upper extremity weakness (status post stroke); and a 10 percent rating for residual left lower extremity weakness (status post stroke). As an initial matter, the Board is aware the most recent SSOC readjudicated the issue of entitlement to a TDIU prior to December 2, 2016 only; the RO apparently determined that because the Veteran was already in receipt of a combined disability rating of 100 percent, effective December 2, 2016, consideration of a TDIU from that date forward was unnecessary. As discussed below, however, consideration of entitlement to a TDIU throughout the entire appeal period (i.e., from January 2, 2015 to the present) is necessary in light of the potential for additional compensation in the form of SMC under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280 (2008). In March 2015, VA received medical records from the Social Security Administration indicating the Veteran had been determined to be disabled as of 1994. Conditions contributing to his disability included major depression and history of prostate cancer, as well as numerous nonservice-connected disabilities. In May 2015, the Veteran underwent a VA PTSD Compensation and Pension (C&P) examination. The report notes the Veteran was unemployed, due in part to physical disabilities. The Veteran stated he was attending counseling for his PTSD. The examiner noted the Veteran moved and spoke slowly with limited clarity of speech; he had mild visual and hearing impairments; and his movements were all slow and deliberate. The examiner noted the Veteran’s symptoms continued to disable his social and emotional functioning; the examiner added a diagnosis of depression in light of the Veteran’s ongoing struggle with his physical disabilities. In his January 2016 notice of disagreement, the Veteran stated he was unable to obtain and maintain substantial gainful employment due to his PTSD and prostate residuals; he specifically noted his PTSD limited his ability to interact with others and adapt to stressful circumstances, while his prostate disability, to include incontinence, required regular access to the bathroom and contributed to his limited mobility. In February 2017, the Veteran underwent a C&P examination for his prostate disability. The report noted the Veteran had a voiding dysfunction that required wearing absorbent materials that had to be changed more than four times per day, as well as increased urinary frequency with a daytime voiding interval between one and two hours and nighttime awakening to void three to four times per night. In June 2017, the Veteran underwent another C&P examination for his PTSD. The report noted his PTSD caused occupational and social impairment with reduced reliability and productivity. The Veteran reported difficulties with relationships, including in his marriage. He stated he used to have a barbeque business from 2006 to 2010, but that he had to close it up because “it was hard for me to work in the public”; he also cited other medical issues as contributing to closing his business. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. In an April 2020 statement, the Veteran reported he was last employed in December 2010, when he was the owner/manager of his own restaurant. In a December 2020 statement, he reiterated that he was unable to obtain and maintain employment due to his PTSD and prostate disability. Specifically, the Veteran asserted, his PTSD caused him to be unable to work in public due to limitations in interacting with others, while his prostate disability prevented him from lifting, walking, and standing, as such activities increased his urinary frequency. Based on the above evidence, the Board concludes the Veteran can fairly be said to have been rendered unemployable when considering only the effects of his service-connected PTSD and prostate disability. See 38 C.F.R. § 4.16(a). As discussed above, the record reflects the Veteran has not been employed at any time during the appeal period, and both the lay and medical evidence of record is consistent with substantial impairment in interpersonal functioning as well as some cognitive impairment (due to PTSD) and significant physical impairment (due to residuals of a prostate disability). The Board acknowledges the Veteran was dealing with other, nonservice-connected medical conditions which adversely impacted his ability to function in a work environment. Nonetheless, the severity of his PTSD symptoms and prostate disability, in conjunction with one another, was shown to render the prospect of substantially gainful employment functionally impossible. As a result, when resolving reasonable doubt in the Veteran favor, the Board finds his service-connected PTSD and prostate disability, considered independently from his other service-connected disabilities, prevents him from securing or following substantially gainful employment. Accordingly, entitlement to a TDIU is granted, effective January 2, 2015. 2. SMC under 38 U.S.C. § 1114(s) The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Relevant to this appeal, a claim for increased disability compensation may include the inferred issue of entitlement to SMC, even where the claimant has not expressly placed entitlement to SMC at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). In this regard, SMC is warranted if a veteran has a service-connected disability rated as total and has additional service-connected disabilities independently rated as 60 percent or more, or by reason of such service-connected disabilities is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran has not alleged, and the record does not reflect, that he is housebound. However, the Board has determined a TDIU is warranted specifically on the basis of symptomatology caused by the Veteran’s service-connected PTSD and prostate disability; because the Veteran has other service-connected disabilities independently ratable at 60 percent or more, beginning on December 2, 2016, entitlement to SMC at the (s) level as of that date is warranted. See Bradley, 22 Vet. App. 280; Buie v. Shinseki, 24 Vet. App. 242 (2010). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.