Citation Nr: 21010520 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-12 274 DATE: February 25, 2021 ORDER Entitlement to a rating of total disability due to individual unemployability (TDIU) effective December 2, 2009, but no earlier, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least evenly balanced to support a finding that the Veteran was unable to secure or follow substantially gainful employment effective December 2, 2009, which was the last day that he was substantially and gainfully employed. CONCLUSION OF LAW The criteria for entitlement to a TDIU effective December 2, 2009, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1967 to June 1969, to include verified service within the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Sadly, the Veteran passed away in February 2020. The appellant is the Veteran’s surviving spouse. Her application to be recognized as the substitute claimant for the Veteran’s remaining claim on appeal was granted in March 2020. Entitlement to a rating of a TDIU effective December 2, 2009, but no earlier, is granted. The Board initially notes that in addition to posttraumatic stress disorder (PTSD), the Veteran was service connected for coronary artery disease since September 28, 2007. By way of additional background, the Board deems it useful to recount the appellate history of the Veteran’s claim for a TDIU, as has been part and parcel of the Veteran’s continuously prosecuted claim for higher ratings for PTSD. In a March 2, 2016 Board decision, the Veteran’s PTSD was finally adjudicated as 30 percent disabling prior to November 14, 2012, but 50 percent disabling thereafter. To the extent that this may have been formerly final, this Board decision was vacated by the Court of Appeals for Veterans Claims (Court) on July 28, 2017. From the Court’s vacatur, the matter was remanded by the Board back to the Agency of Original Jurisdiction (AOJ) for further development on February 27, 2018. Meanwhile, in an August 2018 rating decision, the Veteran was awarded TDIU effective November 14, 2012—the date that the Veteran then appeared to satisfy the schedular criteria for a TDIU. In a Board decision dated July 23, 2019, the Board granted the Veteran’s claim for an initial 70 percent rating effective June 23, 2008 for PTSD, among other claims. The Board explicitly declined to assert jurisdiction over TDIU for any period prior to November 14, 2012. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran subsequently appealed this determination to the Court. The Court granted a Joint Motion for Partial Remand (JMPR) on October 8, 2020, for the Board to adjudicate the Veteran’s claim for a TDIU under Rice v. Shinseki, supra. Meanwhile, to the extent that the July 2019 Board decision issued certain final determinations as to ratings and compensations, the Board notes the Court’s determination that all other claims are final, except for TDIU prior to November 14, 2012. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc); Roberson v. Principi, 17 Vet. App. 135, 138 (2003) (per curiam order). The Veteran had consistently contended that his service-connected PTSD and coronary artery disease rendered him unemployable. See VA Form 21-8940 (rec’d May 20, 2014 ). In the above-mentioned August 2018 rating decision, the AOJ indicated that the Veteran’s TDIU was granted because of the combined effects of the Veteran’s PTSD and coronary artery disease together, effective November 14, 2012. As a result of the July 23, 2019 Board decision, the Veteran now satisfies the schedular criteria for a TDIU based upon PTSD alone since June 23, 2008. The Board accordingly reasserts jurisdiction of the claim for the Veteran’s entitlement to a TDIU prior to November 14, 2012. The Board concludes that the Veteran’s final day of employment was December 1, 2009; therefore, the Veteran’s claim for a TDIU is granted effective December 2, 2009 but no earlier. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. It is the established policy of the Department of Veterans Affairs 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. Id. at § 4.16(b).  In this case, the Veteran has been entitled to schedular consideration throughout the appeal period. Id. at § 4.16(a). The key question at issue is whether the Veteran’s service-connected disabilities, in and of themselves, have rendered him unable to secure or follow gainful employment at any time during the period under review. The Board had previously concluded that PTSD and coronary artery disease together rendered the Veteran unemployable. The Veteran’s service-connected coronary artery disease predates his 70 percent initial rating for PTSD, but the Veteran was employed until December 1, 2009. See VA Form 21-4192 (rec’d Feb. 7, 2018 ). As a result, the Board concludes resolves all doubt in the Veteran’s favor and determines that he was entitled to a TDIU effective December 2, 2009. In so concluding, the Board accepts all previous testimony and findings of fact, as previously developed in granting TDIU effective November 14, 2012, which used to be the earliest date that the Veteran satisfied the schedular criteria for a TDIU. The question of employability is ultimately a legal one, not a medical one. The Veteran had completed an undergraduate education, and was last employed as an outside salesperson in European imported automobiles. After careful and sympathetic consideration, the Board resolves all doubt in the Veteran’s favor to find that he was unable to secure and maintain substantial and gainful employment due to his service-connected PTSD and coronary artery disease as of December 2, 2009—as evidence by his final day of unemployment, which was December 1, 2009. As such, entitlement to TDIU is warranted effective December 2, 2009, but no earlier, on the basis of the combined effects of his service-connected PTSD and coronary artery disease. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). To the extent that entitlement to a TDIU may sometimes raise the issue of derivative entitlement to special monthly compensation under 38 U.S.C. § 1114(s), in order to maximize benefits and policy where applicable, see Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); AB v. Brown, 6 Vet. App. 35 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008); see also 38 C.F.R. § 3.103(a) (noting VA’s obligation to “render a decision which grants every benefit that can be supported in law”), the Board determines that no further entitlements apply aside from TDIU effective December 2, 2009. The Veteran already received SMC under 38 U.S.C. § 1114(s), see generally Rating Decision (Aug. 5, 2019), and does not meet the schedular requirements for SMC prior to November 14, 2012. As a result, the Board interprets granting the Veteran’s claim for a TDIU effective December 2, 2009 as a full grant of the benefit sought on appeal. The Board is thankful for the Veteran’s honorable service and expresses its sincerest sympathy to the appellant for the loss of her spouse, as well as to the Veteran’s surviving family. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.