Citation Nr: 21008290 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 17-14 748 DATE: February 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) is granted from August 2, 2017, subject to controlling regulations governing the payment of monetary awards. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s)(1) is granted from August 2, 2017, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. From August 2, 2017, the Veteran’s service-connected PTSD renders him unable to secure and follow a substantially gainful occupation. 2. From August 2, 2017, the Veteran has a single disability rated total and additional disability ratable at 60 percent or more. CONCLUSIONS OF LAW 1. From August 2, 2017, the criteria for entitlement to a TDIU based on PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From August 2, 2017, the criteria for SMC pursuant to 38 U.S.C. § 1114(s)(1) are met. 38 U.S.C. § 1114(s)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from June 1997 to August 1997, May 2003 to March 2004 and October 2005 to August 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2019 Board decision, the Veteran was granted an increased disability rating for his psychiatric disabilities and a TDIU for the period prior to February 21, 2017. However, the Board found that a TDIU was not warranted from that date and the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC or the Court). In April 2020 the Veteran and the Board filed a Joint Motion for Remand (Joint Motion), partially vacating the Board’s decision and remanding the Veteran’s claim for entitlement to a TDIU from February 21, 2017. In August 2020, the Board found that it had jurisdiction to assign the effective dates of entitlement to a TDIU in the initial instance, and that the issue was properly before the Board. The Board remanded the matter for further evidentiary development. 1. TDIU after February 21, 2017 Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. § §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of: Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran’s service-connected disabilities are as follows:. Therefore, he meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU. Thus, the next question for consideration is whether his service-connected disabilities prevents him from securing and following substantially gainful employment. For the following reasons, a TDIU from August 2, 2017, the date the Veteran stopped working full-time is warranted. In April 2017, the Veteran submitted a formal TDIU application, VA Form 21-8940a indicating that he was currently employed full-time as a clerk with VA since February 21, 2017. He noted that previously, he had not worked since October 16, 2016 due to service-connected PTSD and depression. He indicated that he completed four years of college. The Veteran noted that he had not received any other education or training since becoming too disabled to work. In an April 2017 PTSD Disability Benefits Questionnaire (DBQ), the Veteran’s treating VA psychologist indicated that the Veteran had sustained a marked decline in functioning since service in Iraq. Specifically, he was working as a counselor in a prison while serving as an elected official prior to going to Iraq and when he returned, symptoms that were tied directly to combat PTSD and secondary depression had increased over time and had markedly limited his ability to work. Last year, he worked part-time in labor positions, but struggled with interacting with others and being out of the house. He recently took a job as a clerk to assess his ability to tolerate work environments, to provide a sense of purpose and decrease significant isolation. The examiner noted that this was under-employment for him given his background and it was hoped that it would be a positive experience. However, the examiner expressed concern about the impact of PTSD and depression on his ability to maintain employment, especially if he experienced an additional increase in mental health symptoms. An April 2017 Skin VA examination report shows the examiner indicated that the Veteran’s dermatitis and urticaria did not impact his ability to work. In an April 2017 Knee and Lower VA examination report, the examiner indicated that the Veteran’s bilateral knee condition impacted his ability to perform any type of occupational tasks. The examiner noted that the Veteran was unable to run or kneel without developing intolerable knee pain. He was unable to keep a job, such as a potential firefighter, which required such tasks. In an April 2017 Headaches VA examination report, the examiner indicated that the Veteran’s headache condition impacted his ability to work. The examiner noted that the Veteran had frequent sensitivity to light and sound due to migraines, and he would be unable to keep a job, such as a potential lifeguard, which involved these exposures. In an April 2017 TBI VA examination report, the examiner indicated that the Veteran’s residual conditions attributable to a TBI impacted his ability to work. The examiner noted that the Veteran would need to either go home early or miss work entirely due to prostrating headaches at least once a month. In May 2017, the Veteran’s current VA employer reported that the Veteran had been employed full-time since February 21, 2017 performing clerical work. In a February 2020 statement, the Veteran reported that he worked for VAMC from February 2017 until August 2017. He noted attendance at Ambrose University graduate school full time from September 2017 until May 2018. The Veteran further noted that he had not worked full time since August 2017 and had not attended school since May 2018. In a May 2020 PTSD VA examination report, the examiner indicated that the Veteran’s PTSD impacts his ability to work. The examiner noted the Veteran may best function in environments where he does not have to interact with groups of people. Also, that the Veteran may be best suited for work environments where he is able to work independently. In an August 2020 TBI examination report, the examiner indicated that the Veteran’s TBI does not impact his ability to work. In June 2020, the Veteran submitted a TDIU application indicating that his service-connected PTSD and depression prevents him from securing or following substantial employment. He reported the he began working full-time as a clerk at a VA hospital on February 21, 2017 and became too disabled to work on August 1, 2017. He indicated that he completed four years of college. The Veteran noted that since he became too disable to work, he attended St. Ambrose University from August 2017 to May 2018. In October 2020, the Veteran’s former VA employer reported that the Veteran had been employed from May 21, 2017 to August 4, 2017, as a medical supply assistant. In an October 2020 letter, the Veteran’s attorney asserted that the Veteran continues to be unemployable from May 2018. The attorney indicated that the October 2018 report of concrete work was not paid employment, as the Veteran was helping out his cousin with farm projects. The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The above evidence reflects that from August 2, 2017, the Veteran’s service-connected psychiatric disorder, bilateral knee disabilities, and migraine headaches precludes him from securing substantially gainful employment given his educational and occupational history. Thus, entitlement to a TDIU is warranted from August 2, 2017, the date the Veteran stopped working full-time. 38 C.F.R. § 4.16 (a). The only remaining question is whether the Veteran’s TDIU is based on a single service-connected disability. This determination is important because of 38 U.S.C. § 1114(s)(1). That law provides that the Veteran is entitled to SMC if he has a single disability rated as total and additional service-connected disability or disabilities independently ratable at 60 percent or more. Significantly, “section 1114(s) does not limit ‘a service-connected disability rated as total’ to only a schedular rating of 100%, and the Secretary’s current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating.” Bradley v. Peake, 22 Vet. App. 280, 293. The above evidence reflects that the Veteran’s PTSD and TBI renders him unemployable and therefore the TDIU is granted based on this disability alone. SMC “SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim.” Perciavalle v. Wilkie, 32 Vet. App. 117, 122 (2019) In the decision above, the Board has granted a TDIU from August 2, 2017 based on the single service connected disability of PTSD and TBI (these disabilities have been rated together under a single hyphenated diagnostic code, 9411. The Veteran also has additional disability rated 60 percent or more, as he is in receipt of service connection for migraine headaches, rated as 50 percent disabling; mechanical low back pain, rated as 40 percent disabling; degenerative disc disease of the lumbar spine with intervertebral disc syndrome and left lower extremity radiculopathy, rated as 20 percent disabling; patellofemoral syndrome, right knee with degenerative changes, rated as 10 percent disabling; patellofemoral syndrome, left knee with degenerative changes, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; dermatitis with urticaria claimed as eczema, rated as 10 percent disabling; and right testicular cyst, left epididymitis and spasm of the left spermatic cord, rated as 0 percent disabling. As the Veteran now meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114 (s)(1) from August 2, 2017, entitlement to this benefit is warranted from that date. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.