Citation Nr: 21014669 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-22 909 DATE: March 15, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is granted for the period from February 21, 2019 through November 7, 2019 and from November 19, 2020. Entitlement to Special Monthly Compensation (SMC) is granted effective November 7, 2019. REMAND Entitlement to TDIU on an extraschedular basis prior to February 21, 2019 is remanded. FINDINGS OF FACT 1. For the period from February 21, 2019 to November 7, 2019 and from November 19, 2020 the Veteran’s service-connected disabilities have been shown to render him unable to maintain substantially gainful employment consistent with his educational and employment history. 2. The requirements for SMC of a single disability rated as 100 percent disabling or the equivalent and a separate disability rated as 60 percent disabling have been met as of November 7, 2019. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU have been met from February 21, 2019 to November 7, 2019 and from November 19, 2020. 38 U.S.C. § 5107; 38 C.F.R. § 4.16 (a). 2. The criteria for entitlement to SMC have been met as of November 7, 2019. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from October 1968 to September 1970. This matter was previously before the Board in March 2019 when it was remanded with instructions to obtain an opinion on service connection for acquired psychiatric disability based on the VHA opinion obtained by the Board. On remand, service connection was granted for an acquired psychiatric disability secondary to his service-connected back disability and staged ratings of 30, 100, and 70 percent were assigned. Therefore, the issue of service connection for acquired psychiatric disability is no longer before the Board. The remaining issue before the Board, entitlement to TDIU, was previously remanded with instructions to consider all disabilities of record as well as the Veteran’s work history and educational background. In light of the decision below, the Board finds that any failure to strictly comply with the remand directives is moot. Entitlement to TDIU The record shows that the Veteran has been unemployed since about 2003. In 2010, the Veteran filed a statement noting that he was unable to work and had been awarded Social Security Disability benefits and requesting TDIU benefits. At that time, his service-connected disabilities were degenerative disc disease of the lumbar spine, rated as 20 percent disabling and lumbar spine degenerative arthritis, rated as 20 percent disabling, resulting in a combined disability rating of 40 percent. The combined rating was insufficient for entitlement to schedular TDIU benefits under 38 C.F.R. § 4.16 (a). The Veteran’s combined disability rating reached the 70 percent disabling requirement effective February 2019. At that time, his service-connected disabilities were: acquired psychiatric disability, rated as 30 percent disabling; degenerative disc disease of the lumbar spine, rated as 20 percent disabling; lumbar spine degenerative arthritis, rated as 20 percent disabling; right leg radiculopathy, rated as 10 percent disabling; and, left leg radiculopathy, rated as 10 percent disabling. In November 2019, the Veteran’s combined disability rating was increased to 100 percent when the rating for acquired psychiatric disability was increased to 100 percent. The combined disability rating is currently 90 percent effective November 2019, based on a 70 percent rating for acquired psychiatric disability, a 40 percent rating for degenerative disc disease of the lumbar spine, and the continued 20 percent rating for lumbar spine degenerative arthritis and 10 percent for radiculopathy in each leg. During the period from November 8, 2019 and November 19, 2020 a 100 percent schedular rating is in effect for PTSD. This total schedular rating, in conjunction with the award of SMC addressed later in this decision, moots the TDIU award for this period where the 100 percent rating for PTSD is in effect. Bradley v. Peake, 22 Vet. App. 280 (2008). Total disability ratings for compensation may 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 disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability will be considered to exist 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. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his age or 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 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The record shows that in February 2019, the Veteran’s low back disability was characterized by recurrent back pain and periods of time in which he could not get out of bed. (See C&P Exam, 09/07/2017.) He was taking both hydrocodone and gabapentin on a daily basis. He could not engage in prolonged sitting, standing, or walking, could not do any heavy lifting, kneeling, squatting, or climbing, and experienced increased pain with forward bending. His acquired psychiatric disability at that time (February 2019) was considered to be productive of occasional decreases in work efficiency and inability to perform occupational tasks, with evidence of depressed mood, impaired cognitive skills, and poor coping skills. (See C&P Exam, 11/7/2019.) The record shows that other symptoms of his acquired psychiatric disability included chronic sleep impairment and impaired judgment. (See Rating Decision, 11/23/2020.) A VHA opinion rendered in June 2018 had included a diagnosis of Persistent Depressive Disorder based on persistent depressed mood, insomnia, difficulty concentrating, diminished interest in activities, and social withdrawal. (See VA Examination, 06/11/2018.) And the July 2017 VA examination had also described symptoms of nightmares and flashbacks and a loss of trust in others. (See C&P Exam, 07/25/2017.) Considering the evidence with respect to the Veteran’s physical and mental health disabilities in February 2019, the Board finds that the Veteran was not capable of engaging in substantially gainful employment which was consistent with his educational level and occupational history. The Veteran’s educational level is that of a high school graduate. (See VA Examination, 06/11/2018.) The Veteran’s work history is predominantly one involving some measure of physical labor, such as farming and factory work, or include the operation of heavy machinery such as semi-trucks. (See VA Examination, 06/11/2018.) The Board notes that the Veteran’s low back disability precludes sitting for long periods of time, a job requirement in his previous occupation of long-haul truckdriver. In addition, the Veteran’s mental health disabilities interfered with his ability to relate well with other people and to maintain attention and concentration and judgment, both of which would negatively impact his ability to work, particularly in less physically demanding work environments. Therefore, the Board finds that the Veteran was precluded from engaging in substantially gainful employment as a result of his physical and mental health disabilities for the period of February 21, 2019 through November 7, 2019, and TDIU is warranted for that time period. The VA examination in November 2020 is the only mental health evaluation which explicitly addressed the Veteran’s ability to function in the workplace, and that examiner offered the opinion that the Veteran was capable of sedentary work in a low stress environment. (See C&P Exam, 11/19/2020.) In addition, the VA examination noted that the Veteran was experiencing symptoms that included disturbances of motivation and mood, anxiety, depression, suspiciousness, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, and impaired impulse control. It is the Board’s findings that the VA examination shows that as of November 19, 2020, the Veteran’s acquired psychiatric disability alone would render him unable to maintain substantially gainful employment consistent with his educational background and work history. Therefore, entitlement to TDIU is warranted and will be applied from February 21, 2019, the date the threshold percentages under 38 C.F.R. § 4.16(a) have been met. In light of the Veteran’s physical and mental health disabilities and his work history and educational background, the Board finds that he is precluded from engaging in substantially gainful employment. As such, entitlement to TDIU for from February 21, 2019 is granted, excluding the period from November 8, 2019 to November 19, 2020, where a total schedular rating is in effect. Entitlement to SMC under Bradley Special Monthly Compensation (SMC) 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. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that there could be a situation where a veteran had a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability or disabilities in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate). See 38 U.S.C. § 1114 (s). Moreover, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Bradley essentially requires that VA consider a TDIU claim despite the existence of a schedular total rating if VA finds the separate disability supports a TDIU independent of the disability that is rated 100 percent. Id. at 294. Based on the grant of TDIU above the issue of entitlement to SMC is raised, specifically for the time period beginning November 7, 2019. Entitlement to SMC prior to November 7, 2019, need not be addressed, despite the grant of TDIU for a portion of that time period, based on the Board’s findings that TDIU for that period is warranted based on both mental and physical health disabilities and not for a single disability. However, in light of the disability rating of 70 percent assigned for acquired psychiatric disability beginning November 19, 2020 (as compared to only 30 percent for the prior period), and the Board’s conclusion that the mental health symptoms would preclude gainful employment, consideration of SMC for the second period based on TDIU under Bradley must be addressed. The Board notes that the requirements for SMC when a single disability is rated as 100 percent disabling or is sufficient for an award of TDIU specify only that the Veteran have another disability or disabilities which are independently rated as 60 percent disabling. The Board notes that the Veteran’s other disabilities – degenerative disc disease of the lumbar spine (40 percent disabling), degenerative arthritis of the lumbar spine (20 percent disabling), right leg radiculopathy (10 percent disabling), and left leg radiculopathy (10 percent disabling) – yield a combined disability rating of 60 percent under 38 C.F.R. § 4.25. In addition, under 38 C.F.R. § 4.16 (a), all may be counted as a single disability since the radiculopathy ratings are associated with the low back ratings as a matter of record. As such, entitlement to SMC based on a 100 percent or equivalent rating for a single disability and a 60 percent rating for a separate disability has been shown as of November 7, 2019. 38 U.S.C. § 1114 (s). REASONS FOR REMAND As noted above, prior to February 21, 2019, the Veteran’s combined disability rating did not meet the requirements for a schedular TDIU rating. However, the record shows that the Veteran was not employed, was receiving Social Security Disability benefits, and had service-connected disabilities which affected his employment, including his back disabilities and his acquired psychiatric disability. Under such circumstances, the provisions of 38 C.F.R. § 4.16 (b) must be considered. An extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). In such case, the Board cannot make a decision on entitlement in the first instance but must instead refer the claim to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). Accordingly, the matter is REMANDED for the following action: (Continued on the next page)   Refer the issue of entitlement to TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) to the Director of Compensation Service. The Director should be advised of the Veteran’s education (high school diploma) and his work history and experience primarily as a truck driver, as well as the restrictions imposed by his physical and mental health disabilities. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.