Citation Nr: 21008669 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 10-11 277 DATE: February 17, 2021 ORDER For the rating period prior to April 28, 2015, and beginning December 1, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) based solely on the service-connected psychiatric disability is granted. For the appeal period prior to April 28, 2015, entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) is denied. Entitlement to a TDIU is dismissed as moot for the period from April 28, 2015 to November 30, 2015. Beginning December 1, 2015, entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) is granted. FINDINGS OF FACT 1. The Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disability throughout the rating period prior to April 28, 2015, and beginning December 1, 2015. 2. For the appeal period prior to April 28, 2015, the Veteran is in receipt of an award of TDIU based on his psychiatric disability alone, but he was not in receipt of a combined 60 percent disability rating for his other service-connected disabilities. 3. For the rating period from April 28, 2015 to November 30, 2015, and in light of the Veteran’s receipt of a 100 percent schedular rating for prostate cancer and the award of SMC, there is no longer a case or controversy with respect to the issue of entitlement to a TDIU during this period. 4. Beginning December 1, 2015, the Veteran is in receipt of an award of TDIU based on his psychiatric disability alone, and was also in receipt of a combined 60 percent disability rating for his other service-connected disabilities. CONCLUSIONS OF LAW 1. For the appeal period prior to April 28, 2015, and beginning December 1, 2015, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1555; 38 C.F.R. § 4.16 (2020). 2. For the appeal period prior to April 28, 2015, the criteria for SMC pursuant to 38 U.S.C. § 1114 (s) are not met. 38 U.S.C. § 1114 (s). 3. For the appeal period from April 28, 2015 to November 30, 2015, a TDIU is dismissed as moot. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101 (2020). 4. Beginning December 1, 2015, the criteria for SMC pursuant to 38 U.S.C. § 1114 (s) are met. 38 U.S.C. § 1114 (s). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1950 to September 1953 and July 1954 to September 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the February 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran and his spouse testified regarding this matter at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The issue for entitlement to a TDIU was most recently remanded by the Board in November 2020. TDIU for the Appeal Period Prior to April 28, 2015 and Beginning December 1, 2015 A total disability rating for compensation based on TDIU 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, 3.34l, 4.16(a). The Court has held that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C.§ 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute . Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The Court has held that although a TDIU may satisfy the “rated as total” element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of “a service-connected disability” because that requirement must be met by a single disability. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Upon review of the evidence of record, the Board finds that the Veteran is entitlement to a TDIU based solely on his service-connected psychiatric disability for the rating period prior to April 28, 2015 and beginning December 1, 2015. The Board acknowledges that the 50 percent rating assigned to the Veteran’s psychiatric disability (major depressive disorder) during these periods does not meet the schedular criteria for TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, the Board notes that all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran “was ineligible for 4.16(b)-TDIU consideration.” Id. However, the Board finds that Bowling and Floyd’s prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court’s decisions in Thun and Anderson, as well as the Federal Circuit’s affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Director of Compensation, yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, 27 Vet. App. 233, 238 (2015)). The Wages majority separately noted that, “[i]n sum, the Secretary’s contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected.” Id. at 5. Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that “Although it is not clear how the Secretary’s approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.”). Id. at 5 fn 4. Therefore, given the Board’s reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) (“There is an unfortunate-and not entirely unfounded-belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year.”); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand “perpetuates the hamster-wheel reputation of veterans law”). The Board will therefore consider whether a TDIU is warranted based solely on the Veteran’s psychiatric disability for the rating period prior to April 28, 2015 and beginning December 1, 2015. The evidence of record shows that the Veteran last worked in 2001 as a sales associate. He completed 2 years of high school and did not have any other education or training. The Veteran specifically indicated that he was unable to work due to his service-connected psychiatric disability. Specifically, he noted that he was unable to cope with anxiety, tremors, and frequent panic attacks. See Formal TDIU application dated in September 2017. In a January 2013 VA psychiatric examination, the Veteran was found to have symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, disturbance of motivation and mood, and difficulty establishing work and social relationships. During a February 2015 VA psychiatric examination, the examiner indicated that the Veteran’s psychiatric disability would result in both mild to moderate impairment in occupational functioning as a result of his depressed mood, poor concentration, irritability, memory difficulties, and sleep problems. According to an October 2017 psychiatric evaluation, Dr. Mullen who is associated with the Poinsett Psychiatric Group, interviewed the Veteran and his spouse, conducted psychological testing (including a mental status examination), and discussed the Veteran’s psychiatric history in detail. Dr. Mullen then opined that the Veteran was “totally and completely disabled to work.” It was specifically indicated that the Veteran’s psychiatric symptoms interfered with his memory and that he had deficiencies in most areas. The Veteran was noted to have difficulty getting along with his family and his judgement and thinking were impaired. The Veteran was also noted to have obsessional rituals. According to Dr. Mullen, and based on his assessment, it was noted that the Veteran could not function alone and was “very dependent upon his wife.” Based on the most probative evidence of record, and resolving all benefit of the doubt in the Veteran’s favor, the Board finds that the effects of Veteran’s service-connected psychiatric disability alone rendered him unable to secure or follow a substantially gainful occupation for the appeal period prior to April 28, 2015 and for the appeal period beginning December 1, 2015. Thus, entitlement to a TDIU is warranted during these periods. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). SMC for the Appeal Periods Prior to April 28, 2015 and Beginning December 1, 2015 As a result of this decision, a TDIU due solely to the service-connected psychiatric disability has been granted for the appeal periods prior to April 28, 2015, and beginning December 1, 2015. Thus, for SMC purposes, this disability satisfied the requirement of a “service-connected disability rated as total.” See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). As it pertains to the rating period prior to April 28, 2015, the Veteran’s other service-connected disabilities (including basal cell carcinoma, prostate cancer, hearing loss, tinnitus, and scars) did not combine to a 60 percent rating; as such, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) is not warranted for the appeal period prior to April 28, 2015. However, beginning December 1, 2015, the Veteran’s other service-connected disabilities (basal cell carcinoma, prostate cancer, hearing loss, tinnitus, and scars) combined to more than a 60 percent rating. Accordingly, entitlement to SMC under 38 U.S.C. § 1114 (s) is warranted for the appeal period beginning December 1, 2015. TDIU for Rating Period From April 28, 2015 to November 30, 2015 The Board finds that any claim of entitlement to a TDIU is moot for the period beginning from April 28, 2015 to November 30, 2015. In this regard, the Veteran has already been granted a 100 percent disability rating for his prostate cancer disability and has been granted an award SMC based on additional service-connected disabilities independently ratable at 60 percent or more for the rating period from April 28, 2015 to November 30, 2015. As the Veteran has already been awarded SMC and therefore would have no need to establish a TDIU rating in order to qualify for SMC under 38 U.S.C. § 1114 (s), the holding in Bradley is not applicable in this case. Therefore, the TDIU claim is moot for the appeal period from April 28, 2015 to November 30, 2015. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.