Citation Nr: 21010119 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 04-29 792 DATE: February 24, 2021 ORDER For the appeal period prior to May 26, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities is granted. Beginning May 26, 2020, entitlement to a TDIU as due to the service-connected PTSD disability is granted. Beginning May 26, 2020, special monthly compensation (SMC) pursuant to 38 U.S.C. §§ 1114(s) is granted. FINDINGS OF FACT 1. For the appeal period prior to May 26, 2020, the Veteran’s service-connected disabilities prevented him from obtaining and/or maintaining substantially gainful employment. 2. Beginning May 26, 2020, the Veteran’s service-connected posttraumatic stress disorder (PTSD) prevented him from obtaining and/or maintaining substantially gainful employment. 3. Beginning May 26, 2020, the Veteran is in receipt of a TDIU solely due to his service-connected PTSD and has additional service-connected disabilities independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. For the appeal period prior to May 26, 2020, the criteria for entitlement to a TDIU due to the Veteran’s service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2019). 2. For the appeal period beginning May 26, 2020, the criteria for entitlement to a TDIU due solely to the Veteran’s PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2019). 3. For the appeal period beginning May 26, 2020, the criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1114(s), 5107 (2012); 38 C.F.R. § 3.350 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1968 to March 1976. In June 2019, the Board increased the rating for lumbar spine degenerative disc disease and remanded the issue of a TDIU, which was found to be part and parcel of the Veteran’s increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU claim has since returned to the Board for further appellate consideration. In November 2020, the Veteran’s agent submitted a notice withdrawing representation on behalf of the Veteran. However, after the agency of original jurisdiction has certified an appeal to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion. See 38 C.F.R. § 20.608. As no motion has been submitted showing good cause, the November 2020 notice is not valid. Further, a copy of the November 2020 notice does not appear to have been sent to the Veteran. As such, the Veteran is considered to be represented by the attorney listed on the title page. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Pertinent Laws and Regulations - TDIU It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “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.” 38 C.F.R. §§ 3.340(a)(1). Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. See 38 U.S.C. § 1155. Here, the Veteran is service connected for posttraumatic stress disorder (PTSD); degenerative disc disease, postoperative left hemilaminotomy and discectomy, L4-5 and laminectomy L3-4; right total knee replacement; left total knee replacement; osteoarthritis status post fusion left ankle; right sciatic nerve radiculopathy; left sciatic nerve radiculopathy; surgical scars right knee associated with right knee total knee replacement; surgical scars left knee associated with left total knee replacement; surgical scar lumbar spine associated with degenerative disc disease, post-operative left hemilaminotomy and discectomy, L4-5 and laminectomy L3-4; and, chronic conjunctivitis. The Veteran met the schedular criteria for a TDIU on September 5, 2003, as the combined rating was 70 percent. The remaining question is whether any of the service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation. Id. The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for his to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. at 363. Thus, the central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). Entitlement to a TDIU for the appeal period prior to May 26, 2020 The Veteran contends that he has been unable to work due to the limitations presented by his bilateral total knee replacement, degenerative disc disease, bilateral lower extremity radiculopathy, and other service-connected disabilities. See VA Form 21-8940, dated August 1, 2018. After careful consideration of the record, to include both the lay and medical evidence, the Board resolves any reasonable doubt in the Veteran’s favor and finds that he is deemed unemployable by reason of his service-connected disabilities for the period on appeal prior to May 26, 2020. According to September 2018 VA Form 21-8940, the Veteran’s highest level of education was 3 years of college. The Veteran’s DD Form 214 indicates that the Veteran’s military occupational specialty (MOS) was that of aircraft maintenance specialist. In a work history report within his Social Security Administration (SSA) file, the Veteran reported working for the state Department of Motor Vehicles from December 1984 to July 1986; as a paint foreman in 1985 to 1988 and again in 1993; and, as a transportation coordinator from July 1995 to September 1995. The Veteran stated in a VA treatment record that he had an Associate of Arts degree studying criminal law and was in pursuit of a Bachelor of Arts degree in psychology, business, and minor in African studies. See VA Treatment Record, dated July 28, 2004. The Veteran was awarded disability benefits from SSA based on evidence of impairments including knee problems, back problems, and obesity, which prevented him from sitting or standing for long periods and lifting more than ten pounds. SSA determined that the Veteran had the residual functional capacity to perform sedentary work but was unable to perform past relevant work and his job skills did not transfer to other occupations within the sedentary residual functional capacity. See SSA Decision, dated July 27, 2006, pg. 4-5. In a November 2017 VA pain clinic treatment record, the Veteran reported constant low back pain, described as deep aching pain with occasional sharpness, which ranges from 6/10 to 8/10, with exacerbating factors such as getting up from a seated position which improved upon walking, but when walking greater than 10 minutes, the pain returned. See VA Treatment Record, dated November 16, 2017. The Veteran submitted a medical opinion from his VA psychiatrist which opined he was unemployable due to his psychiatric disability. See VA Medical Opinion, dated May 17, 2018. In November 2018, an initial VA PTSD examination and report found occupational and social impairment with 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. The Veteran reported in the last job he had he quit because his coworker was very difficult to work with and he did not get along with his supervisor. The examiner stated that his problems with sleep make it difficult for him to start his work feeling well rested, that he does not like to be around people and is suspicious of them, and as a consequence made it difficult for him to work with others as a team to accomplish a task. Further, his negative interactions with others, combined with depression, made it difficult for him to be helpful to potential or current customers or clients and workers, but that he did not appear to pose a threat of danger or injury to self or others. See Initial PTSD Disability Benefits Questionnaire, dated November 5, 2018. A VA medical opinion was obtained to determine the impact of the Veteran’s service-connected physical disabilities (knees, spine, and radiculopathy) on his ability to obtain substantial gainful employment. The examiner opined that his disabilities had a moderate to marked effect on his physical abilities, noting that he had limited capacity for ambulation with use of cane, walker, and crutches; would be limited in his ability to repeatedly stand or walk for 10 minute intervals; and, had significant decreased range of motion (ROM) and weakness of the lumbar spine. Such would preclude him from activities involving bending, twisting, carrying or lifting objects weighing more than 10 pounds and, to the extent possible, from any squatting, kneeling, crawling, climbing, or extended overhead activities. Further, his capacity for pulling and pushing with more than 25 pounds of force was significantly diminished. The examiner concluded the limitations would have a mild to moderate effect on sedentary activities, that he would be mildly limited in his capacity to work at an ergonomically adjusted desk position in that he would have to be able to get up and move around as needed to keep his back from tightening up and he would have to be in a completely disabled access environment. See VA Medical Opinion, dated November 15, 2018. The Veteran reported during a December 2018 VA spine examination that he had pain at a level between 7 to 9/10, he did not have flareups because the pain was constant, and he could not bend, stand, or walk distances without an increase in severe pain. The examiner opined that the Veteran would be limited in stooping and bending. On examination, the examiner found decreased ROM, which contributed to functional loss with pain on all movements which also caused functional loss, and pain caused functional loss over time and during flareups but was unable to describe in terms of ROM because pain prevented accurate testing. The examiner noted moderate incomplete paralysis of sciatic nerve, which manifested as mild constant and intermittent radicular pain and moderate paresthesias and/or dysesthesias. The examiner indicated the Veteran was positive for IVDS but had no incapacitating episodes in the past 12 months. See VA Back Conditions Disability Benefits Questionnaire, dated December 7, 2018. A December 2018 VA examination concerning the Veteran’s lower extremity radiculopathy found that his standing and walking would be limited due to the moderate incomplete paralysis of sciatic nerve. The Veteran reported severe chronic pain and that he used a brace constantly. The examiner found the radiculopathy caused severe constant and intermittent pain and paresthesias and dysesthesias, and moderate numbness. See VA Peripheral Nerve Conditions Disability Benefits Questionnaire, dated December 7, 2018. An examination for the Veteran’s bilateral knee disabilities was conducted in December 2018. The Veteran reported that he had chronic pain from 7 to 9/10 and described his flareups as constant chronic pain in both knees with numbness and tingling, and he could not stand or walk short distances or more than 10 to 15 minutes. The examiner opined the Veteran would be limited in his ability to stand and walk. On examination, decreased ROM contributed to functional loss, with pain on all movements. The examiner noted pain contributed to functional loss but could not describe in terms of ROM because pain prevented accurate testing. The examiner found the residuals of surgery caused intermediate degrees of residual weakness, pain, or limitation of motion. See VA Knee and Lower Leg Conditions Disability Benefits Questionnaire, dated December 7, 2018. Another VA PTSD examination and report was completed in January 2019. The Veteran reported he was depressed, had negative interactions, that “I don’t like to be around people,” suspiciousness, and sleep problems. The examiner opined the Veteran had 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. The examiner noted negative alterations in conditions and mood associated with the traumatic events, which were evidenced by inability to remember an important aspect of the traumatic event; persistent and exaggerative negative beliefs or expectations about oneself, others, or the world; and, feelings of detachment or estrangement from others. Marked alterations in arousal and reactivity associated with the traumatic events were evidenced by irritable behavior and angry outbursts typically expressed as verbal or physical aggression; hypervigilance; problems with concentration; and, sleep disturbances. The symptoms noted by the examiner included depressed mood; anxiety; chronic sleep impairment; circumstantial, circumlocutory or stereotyped speech; difficulty understanding complex demands; disturbances in mood and motivation; and, nightmares and night sweats. The examiner noted the Veteran presented “with signs and symptoms of anxiety beyond what is expected for these examinations. He is very verbose and speaks rapidly.” See VA PTSD Disability Benefits Questionnaire, dated January 12, 2019. In March 2019, the Veteran was seen at a VA pain clinic. The physician found generalized tenderness in the left ankle with edema; limited ROM with pain; and limited strength in the left ankle. The Veteran endorsed attempts to treat his pain with anything other than fentanyl patches were unsuccessful. The physician noted the Veteran was moderately independent with activities of daily life and gait, but significant pain limited quality of life. See VA Treatment Record, dated March 27, 2019. In a December 2019 VA treatment record, the Veteran reported pain in the left ankle, having had left ankle fusion in October 2018. The physician noted severe left subtalar joint arthritis. See VA Treatment Record, dated December 20, 2019. Based on the foregoing, and with resolution of all reasonable doubt in favor of the Veteran, a TDIU is warranted as the evidence demonstrates the Veteran had been unable to secure or maintain a substantially gainful occupation due to his service-connected disabilities. As noted above, the Veteran had been found to have difficulties with prolonged walking, standing, and sitting. He also had severe constant and intermittent pain in the bilateral lower extremities, and limited ROM in his knees, bilaterally, and his spine, which contributed to functional loss. The November 2018 VA examination and report concluded that his service-connected disabilities would have a mild to moderate effect on sedentary activities, that he would have to be able to get up and move around as needed to keep his back from tightening up and he would have to be in a completely disabled access environment. Finally, the Veteran reported that he had constant pain in his back, knees, and lower extremities, which became severe, and limited his ability to bend, stand for more than 10 to 15 minutes, or walk distances. The Board finds that these restrictions, specifically the functional impact as described by the November 2018 examiner, would significantly limit the Veteran’s ability to perform any reasonable physical or sedentary occupational task. As such, the Board resolves doubt in the Veteran’s favor in finding that he is unable to obtain or maintain substantially gainful employment consistent with his educational and work background. The evidence is clear that he was unable to work for the duration of the rating period on appeal to May 25, 2020 due to his service-connected disabilities. Therefore, the Veteran’s TDIU claim is granted for the appeal period to May 25, 2020. 38 C.F.R. § 4.16. Entitlement to a TDIU Beginning May 26, 2020 After careful consideration of the record, to include both the lay and medical evidence, the Board resolves any reasonable doubt in the Veteran’s favor and finds that he is deemed unemployable solely by reason of his service-connected PTSD for the period on appeal from May 26, 2020. A VA PTSD examination and report was completed in May 2020. The Veteran reported a history of not getting along with his supervisor and coworkers. The examiner found that the Veteran would experience some impairment in activities associated with engaging in the necessary and expected social interactions required in seeking and maintaining gainful employment, and that the Veteran had occupational and social impairment with reduced reliability and productivity, but his disability did not preclude him from employment. The examiner noted negative alterations in conditions and mood associated with the traumatic events, which were evidenced by persistent and exaggerative negative beliefs or expectations about oneself, others, or the world; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; and, persistent inability to experience positive emotions. Marked alterations in arousal and reactivity associated with the traumatic events were evidenced by irritable behavior and angry outbursts typically expressed as verbal or physical aggression; hypervigilance; exaggerated startle response; problems with concentration; and, sleep disturbances. The examiner indicated that the symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. Additional symptoms noted by the examiner were depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near continuous panic or depression affecting the ability to function independently or appropriately; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. The examiner noted worsening of symptoms, which had resulted in increased social withdrawal, anxiety, and depression. His depression was now continuous and impacted his daily activities. See VA PTSD Disability Benefits Questionnaire, dated May 26, 2020. In September 2020, the Veteran reported that he felt he was “walking around like a zombie all the time,” and noted that his partner calls him a “zombie.” The psychiatrist noted the Veteran was angered by the perceived mistrust of him by medical personnel regarding his medications. See VA Treatment Record, dated September 4, 2020. Based on the foregoing, and with resolution of all reasonable doubt in favor of the Veteran, a TDIU is warranted for the appeal period from May 26, 2020, as the evidence demonstrates the Veteran had been unable to secure or maintain a substantially gainful occupation due solely to his service-connected PTSD. As noted above, the Veteran had been found to have weekly panic attacks, difficulty adapting to stressful circumstances, and near continuous to constant depression, which impacted his daily activities. The May 2020 VA examination and report concluded that his PTSD would have an effect on his ability to obtain employment but would not necessarily preclude him from employment. However, the Board notes that in conjunction with his depression and anxiety, he experienced difficulty in establishing maintaining effective work and social relationships, irritable behavior and angry outbursts typically expressed as verbal or physical aggression, suspiciousness, and near continuous panic or depression affecting the ability to function independently or appropriately, and indicated that the symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. Furthermore, the examiner noted the Veteran would have issues with concentration and mild memory loss. The Board finds that these restrictions would significantly limit the Veteran’s ability obtain or maintain gainful employment. As such, the Board resolves doubt in the Veteran’s favor in finding that he is unable to obtain or maintain substantially gainful employment due solely to his PTSD for the duration of the rating period on appeal from May 26, 2020. Therefore, the Veteran’s TDIU claim is granted from May 26, 2020. 38 C.F.R. § 4.16. Special Monthly Compensation - Laws and Analysis 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. 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). In this case, the Board notes that as a result of this decision, a TDIU due to the Veteran’s service-connected PTSD has been granted for the rating period on appeal from May 26, 2020. 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). Because the Veteran has a single service-connected disability rated as total (i.e., his TDIU due solely to service-connected PTSD), and has additional service-connected disabilities (i.e., degenerative disc disease, postoperative left hemilaminotomy and discectomy, L4-5 and laminectomy L3-4; left total knee replacement; right total knee replacement; osteoarthritis status post fusion left ankle; left sciatic nerve radiculopathy; and, right sciatic nerve radiculopathy) that are independently rated as at least 60 percent disabling, the criteria for SMC at the housebound rate have been met for the rating period on appeal from May 26, 2020. The Board finds that the assignment of a TDIU based on a single disability alone is not warranted for the period prior to May 26, 2020. Notably, the Board finds that the evidence of record, to include the medical evidence discussed above, fails to demonstrate that one service-connected disability alone rendered the Veteran unable to maintain substantially gainful employment prior to May 26, 2020. Thus, an award of a TDIU based solely on one service-connected disability is unavailable such that the Veteran would be afforded SMC at the housebound rate for the period prior to May 26, 2020. Therefore, in light of the Court’s decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) is granted for the rating period on appeal from May 26, 2020. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.