Citation Nr: 21014732 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 04-30 606 DATE: March 15, 2021 ORDER From April 10, 1999, entitlement to a total disability rating based on individual unemployability (TDIU) (excluding the period from January 26, 2009 to June 27, 2012 during which a TDIU is already in effect) is granted. From January 26, 2009, entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is granted. FINDING OF FACT 1. From April 10, 1999 to January 25, 2009, the Veteran’s service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. 2. Resolving reasonable doubt in the Veteran's favor, his service-connected posttraumatic stress disorder (PTSD) has rendered him unable to secure or follow substantially gainful employment for the period on and after January 26, 2009. 3. For the period on and after January 26, 2009, the Veteran has been in receipt of a TDIU based solely on his PTSD with additional service-connected disabilities ratable at 60 percent or more that are separate and distinct from the Veteran’s PTSD and involve different anatomical segments or bodily systems. CONCLUSION OF LAW 1. Effective from April 10, 1999, and resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met (excluding the period from January 26, 2009 to June 27, 2012 during which a TDIU is already in effect). 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. 2. From January 26, 2009, the criteria for SMC under the provisions of 38 U.S.C. § 1114(s) have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from March 1967 to November 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2004 rating decision. In decisions dated in October 2006, September 2009, and August 2015, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Board finds that the AOJ substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). In the August 2015 remand, the Board found that only the issue of entitlement to a TDIU prior to January 26, 2009 remained for appellate consideration based on its understanding that the Veteran had a 100 percent combined evaluation for his service-connected disabilities effective from January 26, 2009, and that the Veteran had not argued he was entitled to a TDIU after January 26, 2009. The record shows that prior to the August 2015 Board decision, the AOJ issued an April 2015 Decision Review Officer (DRO) decision that granted entitlement to a TDIU effective from January 26, 2009 to June 27, 2012. Consequently, the issue of entitlement to a TDIU is moot during this period. On and after June 27, 2012, the Veteran was in receipt of a 100 percent combined schedular rating for his service-connected disabilities. However, the presence of a 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). However, the Court has held that a separate TDIU rating must be predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability, separately rated at 60 percent or more, in order to warrant special monthly compensation under 38 U.S.C. § 1114(s). Id. As such, the Board has recharacterized the issue to include the period after June 27, 2012. Given the favorable determination herein regarding this portion of the appeal period, there is no prejudice to the Veteran in the Board proceeding to adjudicate this issue. Although an April 2001 letter indicated that the Veteran was scheduled for a personal hearing in June 2001, the Veteran clarified that he did not desire such a hearing in an April 2001 statement. The Veteran also noted that he did not want a Board hearing in his August 2004 VA Form 9. As such, there are no outstanding hearing requests. I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a TDIU (excluding the period from January 26, 2009 to June 27, 2012 during which a TDIU is already in effect). In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. 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 Board notes that the Veteran filed a claim for entitlement to a TDIU on April 10, 2000. This claim was denied in an August 2000 rating decision, and the Veteran was sent a September 2000 notification letter for that decision that included his appellate rights. After the Veteran submitted a timely notice of disagreement in October 2000, the AOJ issued a March 2001 SOC that denied the Veteran's claim for a TDIU. Although not specifically addressed in the August 2000 rating decision, the AOJ also denied entitlement to increased ratings for his service-connected residuals of coccidioidomycosis, urolithiasis, and bilateral hearing loss. This statement of the case was enclosed with an April 2001 notification letter that also included a discussion of the Veteran's appellate rights and noted that a VA Form 9 was enclosed. Although the Veteran did not submit a VA Form 9 in response to this decision, the Veteran did submit an April 2001 statement in which he provided additional details concerning the symptoms of his service-connected disabilities in relation to his claim for a TDIU. The Board notes that 38 C.F.R. § 3.156(b) provides that "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The claimant has one year from notification of a Regional Office (RO) decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2000). If the claimant files a timely notice of disagreement with the decision and the AOJ issues a statement of the case, a substantive appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1 year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b) (2000). Applying these provisions to the instant case, the Veteran's April 10, 2000 TDIU claim remained pending as a result of the April 2001 statement received prior to the expiration of the 60-day period following the issuance of the Statement of the Case. See generally Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (applying 38 C.F.R. § 3.156(b) to a situation involving an increased rating). The AOJ later denied the Veteran’s claim for a TDIU in a May 2003 rating decision. The Veteran was sent notice of this decision and his appellate rights in a May 2003 letter. Within one year of this rating decision, the AOJ received a September 2003 VA general medical examination that addressed in part the functional effects of the Veteran's service-connected coccidioidomycosis that were relevant to his TDIU claim. Consequently, the April 10, 2000 claim remained pending. See 38 C.F.R. § 3.156(b). In a January 2004 rating decision, the AOJ found that the Veteran’s TDIU claim remained denied. The Veteran then filed a timely notice of disagreement with this determination in March 2004. After the AOJ issued a statement of the case addressing this issue in July 2004, the Veteran filed a timely VA Form 9 in August 2004. As such, the current TDIU claim stems from the claim filed on April 10, 2000. The United States Court of Appeals for Veteran's Claims (the Court) has firmly held that a claim for a TDIU is considered a claim for an increased evaluation. Hurd v. West, 13 Vet. App. 449, 452 (2000). Thus, the appeal period for the Veteran's TDIU claim begins on April 10, 1999, one year prior to the date of receipt of his increased rating claim. 38 C.F.R. § 3.400(o)(2). During this period, the Veteran in receipt of a noncompensable rating for bilateral hearing loss with history of otitis externa prior to June 27, 2012, and a 70 percent rating thereafter; a noncompensable rating for ureterolithiasis prior to June 27, 2012, and a 30 percent rating thereafter; and a noncompensable rating for disseminated coccidioidomycosis. Effective from October 26, 2000 to June 27, 2012, the Veteran was awarded a 10 percent rating for degenerative “discospondylosis” of the lumbosacral spine and an old healed fracture L1 with posttraumatic arthritis, and a 40 percent rating on and after June 27, 2012. Effective from December 8, 2000 to March 2, 2011, the Veteran was awarded a 10 percent rating for coronary artery disease, and a 30 percent rating effective from March 3, 2011. Effective from January 8, 2001, the Veteran was awarded a 10 percent rating for tinnitus. The Veteran was also awarded a 70 percent rating for posttraumatic stress disorder (PTSD) effective from January 26, 2009 to August 28, 2012, and a 30 percent rating thereafter. Effective from January 26, 2009, the Veteran was awarded a 20 percent rating for diabetes mellitus with erectile dysfunction. Effective from June 27, 2012, the Veteran was awarded a 20 percent rating for diabetic retinopathy, non-proliferative, mild, associated with diabetes mellitus with erectile dysfunction. Effective from March 17, 2011, the Veteran was awarded two separate 10 percent ratings for radiculopathy of the right and left lower extremities associated with the Veteran's lumbar spine disability. The Veteran's combined evaluation was 10 percent prior to October 26, 2000; 30 percent from October 26, 2000 to December 7, 2000; 40 percent from December 8, 2000 to December 25, 2000; 90 percent from January 26, 2009 to June 26, 2012; and 100 percent on and after June 27, 2012. Consequently, the Veteran's service-connected disabilities did not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation until January 26, 2009. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, 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). Accordingly, the question becomes whether entitlement to a TDIU on an extraschedular basis is warranted prior to January 26, 2009. The record shows that in the August 2015 remand, the Board instructed the AOJ to refer the issue of entitlement to a TDIU prior to January 26, 2009 to the Director of VA's Compensation and Pension Service or the Under Secretary for Benefits for consideration of entitlement to a TDIU under 38 C.F.R. § 4.16(b). In November 2020, the AOJ referred the case to the Director Compensation Service. In January 2021, the Director determined that a TDIU was not warranted on an extraschedular basis prior to January 26, 2009. As this step has been completed, the Board may address whether entitlement to an extraschedular TDIU is warranted prior to January 26, 2009. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability, in August 2000 and June 2011. The Veteran reported completing 3 years of college, and he denied receiving any education or training since he became too disabled to work. The Veteran initially reported in August 2000 that his disabilities affected his full-time employment in June 1997, and he became too disabled to work in July 1999. He later stated in June 2011 that he became too disabled to work, and his disabilities affected his full-time employment, in November 1987. However, he reported that he last worked full-time in June 1997. He stated that his recent work history included work as an appointment clerk for the United States Naval Hospital in Guam for 40 hours a week from April 1994 to June 1997. In the August 2000 VA Form 21-8940, the Veteran reported that he resigned from his job due to medical problems that included high blood pressure and hearing loss. In the June 2011 VA Form 9, the Veteran reported that he was prevented from securing a substantially gainful occupation as a result of his coccidioidomycosis, PTSD, lumbar spine disability, diabetes mellitus, diabetic retinopathy, and tinnitus. The Veteran noted that he was released from active duty in November 1987 due to medical reasons and placed on the Temporary Disability Retired List (TDRL) status. In August 1992, he was permanently placed on the Permanent Disability Retired List (PDRL). The Board notes that a July 1992 military personnel record stated that the disability for which the Veteran had been placed on the TDRL had stabilized, and the Veteran would be placed on the retired list by reason of a permanent physical disability effective from August 1, 1992. The Veteran reported in the June 2011 VA Form 21-8940 that he experienced episodes of outbursts of anger that he could not control. He also felt uneasy working with many people. He additionally had difficulty understanding what people were saying, and he could not sit for too long in a chair. The Veteran indicated that customers made complaints prior to his resignation from his last employment position. In August 1999, a private treatment record noted that the Veteran's past medical history included coccidioidomycosis in 1986. He was also discovered to have urolithiasis in 1989, but he claimed to have spontaneously voided. The Veteran was also a known hypertensive for approximately 10 years. In September 1999, a private treatment record stated that the Veteran complained of constant, nagging pain in the upper lumbar area which was worse with bending and prolonged posture. He also had slight swelling in the upper lumbar area as well as some tightness in the paraspinal muscles. The record indicated that he had visited physical therapy approximately 3 to 4 times for 2 weeks, and he was now free from discomfort in his daily activities. In an August 2000 letter, Dr. O. noted that the Veteran had been his patient since June 1999; and his chief complaints included high blood pressure and low back pain. A series of tests further revealed the diagnoses of hypertension, hyperuricemia, insomnia, dyslipidemia, Valley Fever (diagnosed the San Diego Naval Hospital in 1986), L1 compression deformity, neuritis of both hands, and left knee osteoarthritis. Dr. O. additionally indicated that the Veteran had received physical therapy treatments, including an ultrasound, hot moist pack, and transcutaneous electrical nerve stimulation. In November 2000, a VA genitourinary examination reported that the Veteran had a history of hematuria and a urinary tract infection in 1987. However, there had been no recurrent urinary tract infections, and no hospitalization for urinary tract disease in the past year. Although the Veteran claimed to have lost weight, the examiner noted that he had a normal dietary habit with no prolonged anorexia or lethargy. He complained of urinary frequency, and at times he urinated every 5 to 10 minutes. He had had nocturia that bothered his sleep. He also experienced incontinence when sleeping, but he was able to control his bladder while awake. There was no history of passing out bladder stones or acute nephritis. In the diagnosis section, the examiner stated that the Veteran had persistent microscopic hematuria and proteinuria. He also presented with urinary frequency that affected his sleep and daily activities. These symptoms had been persistent since the 1980's. The examiner noted that the symptoms were attributed to probable urolithiasis since the 1980's. The recent intravenous pyelogram (IVP) was normal. As such, the Veteran's symptoms and laboratory findings could be due to a primary intrarenal disorder. A renal biopsy could clarify the diagnosis. The examiner opined that the identified symptoms affected the Veteran's ability to gain employment. The Board notes that the Veteran's service-connected ureterolithiasis was previously characterized as “uretherolothiasis.” See August 2000 Rating Codesheet. Urolithiasis is the process of forming stones in the kidney, bladder, and/or urethra (urinary tract); and ureterolithiasis contemplates ureteral calculi which can also originate in the kidney. See William C. Shiel Jr., Medical Definition of Urolithiasis, MedicineNet (Mar. 12, 2021), https://www.medicinenet.com/urolithiasis/definition.htm; see also Chirag N Dave, Nephrolithiasis, Medscape, Jan. 13, 2020, https://emedicine.medscape.com/article/437096-overview. In a November 2000 VA examination related to respiratory disorders, the examiner noted that the Veteran had a history of disseminated coccidioidomycosis involving lymph nodes, skin, and lungs. He was treated with amphotericin B for a total of 4 to 1 grams. He was then maintained on Ketoconazole for one year. The examiner indicated that the Veteran was not receiving any current treatment. The Veteran did not have a fever, but he reported night sweats. He also claimed to have lost weight, and the examiner stated that his clothes were loose. He additionally experienced an occasional dry cough at night, but there was no hemoptysis. He did not experience daytime hypersomnolence. The diagnosis was history of disseminated coccidioidomycosis without residuals. In October 2000, a private audiological evaluation noted diagnoses of mild, mixed hearing loss in the right ear and mild sensorineural hearing loss in the left ear. During a November 2000 VA examination related to hearing loss, the examiner noted that the Veteran's chief complaint was hearing difficulty, and the difficulty was greatest in noisy situations. The diagnosis was moderate, bilateral sensorineural hearing loss; and the examiner opined that this hearing loss disability reduced the Veteran's chances of being employed. An examination of his ears in a separate examination for ear disease was essentially normal. In a February 2002 letter, Dr. O. noted that the Veteran's complete chief complaints continued to include high blood pressure and low back pain. Dr. O. summarized the Veteran's history of treatment, noting that he sought treatment for back pain in July 1999 and August 1999, at which time he was referred to physical therapy treatment and a possible back brace was suggested. The Veteran was treated for an upper respiratory tract infection in January 2000. bronchitis in December 2000, and a cough in December 2001. No entry in the summary specifically indicated he received recent treatment record for coccidioidomycosis. During an April 2003 VA examination related to diabetes mellitus, the examiner noted that the Veteran complained of back pain. The examiner stated that there were no vascular or cardiac symptoms, and no bladder or bowel impairment. During a September 2003 VA general medical examination, the examiner noted that the Veteran had coccidioidomycosis in 1986 and underwent a biopsy of the lymph nodes. He was given treatment and hospitalized for 6 months. He had also been experiencing recurrent back pain since service. The examiner indicated that the examination was negative for lymphadenopathy, and the Veteran's lymph nodes were negative for abnormalities. There were also no rales or wheezes on examination of his chest, and an examination of his cardiovascular system showed a regular rhythm with no murmur. The diagnoses from the examination included hematuria that was probably secondary to ureterolithiasis; history of coccidioidomycosis with no residual; and posttraumatic arthritis of the lumbar spine. The examiner stated that the Veteran's present disabilities did not make him dependent in terms of activities of daily of living. A September 2003 VA examination specific to the genitourinary system indicated that the Veteran had symptoms of frequency and hesitancy, but not dysuria. In contrast to the previous examination's report that the Veteran was incontinent at night, the examiner indicated that he did not have incontinence. The examiner noted that there was no present treatment. The diagnosis was history of recurrent hematuria that was probably secondary to ureterolithiasis. The examiner stated that the Veteran's history of hematuria, urinary symptoms, and frequency affected his usual occupation and daily activities; particularly his sleeping habits. An August 2003 VA examination related to respiratory disease was also conducted. Although the examiner indicated that the Veteran had a history of weight loss, fever, night sweats, and episodes of hemoptysis in relation to his prior treatment for coccidioidomycosis; the examiner also stated that he presently denied any cough, fever, or night sweats. In contrast to the medical history noted in other examination reports indicating that the Veteran was diagnosed with coccidioidomycosis in 1986, the examiner reported that it was diagnosed in 1996 and the Veteran finished treatment in 1999. In this regard, the Board notes that the records dating the relevant treatment as beginning in 1986 appear to be correct as a September 1986 treatment record reflects that the Veteran was assessed to have disseminated coccidioidomycosis at that time. The examiner did not indicate that the Veteran was receiving any current treatment. The examiner also noted that a pulmonary function test in 2000 had been normal. The diagnosis was history of coccidioidomycosis without residual. In a May 2003 statement, the Veteran reported having difficulty understanding words that were spoken as a result of his hearing loss. During an August 2003 VA examination related to hearing loss, the examiner noted that the Veteran's chief complaint was hearing loss, the situation of greatest difficulty was described as when the speaker was distant and in the presence of noise. The Veteran also had bilateral tinnitus that was recurrent, occurring on an almost daily basis, and lasting for minutes at a time. The diagnosis was moderate right ear sensorineural hearing loss from low to mid frequencies with severe dip at high frequencies and moderate left ear sensorineural hearing loss. Another VA examination report specific to ear disease did not indicate that there were any other notable findings. In an October 2003 VA examination report related to the Veteran's spine, the diagnosis was posttraumatic arthritis of the lumbosacral spine. The examiner indicated that the Veteran initially consulted with a physician and received treatment for arthritis of the lumbar spine in 1997. He subsequently underwent physical therapy 2 to 3 times a week for almost two years, but he was not currently receiving physical therapy. His current symptoms included intermittent and dull low back pain that had a slight to moderate intensity. He currently treated the pain with the use of Alaxan twice day as needed, 2 to 3 times a week with resulting relief and no side effects. The Veteran also experienced flare ups 2 to 3 times a week that lasted for a few minutes to hours. The examiner indicated under the range of motion findings that the Veteran would experience additional loss of motion during flare ups due to pain resulting in slight to moderate limitation of motion. These events were precipitated by cold weather or a bad position. The examination showed a slight muscle spasm, but a preserved spinal contour. The Veteran did not have ankylosis, and he had not experienced any incapacitating episode of intervertebral disc syndrome on the last 12 months. The Veteran was not currently employed, and the examiner opined that the lumbar spine disability had a slight to moderate interference in his daily activities. The examiner noted that he was unable to sleep on his back at night, and he had occasional difficulty standing up in the morning. In a January 2007 statement, W.P. noted that the Veteran had been her patient and undergone physical therapy treatment since 1999 that included treatment for the lower lumbar region. Despite the report from the prior examination that the Veteran was not receiving physical therapy for his lumbar spine, W.P. reported that physical therapy on his lower lumbar region continued up to the present time. Pain and discomfort in the left knee and lower lumbar region bothered him a lot and caused disturbances in his activities of daily living; such as ambulation, driving, and prolonged standing/sitting. A relatively short time before the Veteran was service-connected for PTSD effective from January 26, 2009; the Veteran underwent a private psychiatric evaluation in December 2008. The provider noted that the Veteran's social history included 3 children from his first marriage, 2 children from relationship with a girlfriend, and 3 children from a second marriage. Consistent with the information noted the VA Forms 21-8940, the provider stated that the Veteran had a college level education. The provider reported that he was very inpatient and short-tempered. The Veteran's uncontrollable bursts of anger had at times resulted in physical assaults on family members. The Veteran consequently stayed away from his family as he was afraid that he would inflict more harm on them, and he divorced his first wife. The Veteran's current marital relationship was also troubled as he had physically attacked his wife at times. He even attacked a taxi driver once in an unprovoked burst of anger. He would experience nightmares some nights with difficulty falling asleep. He was also afraid of people in black outfits as it reminded him of his encounters with Viet Cong in black uniforms. During the evaluation, the Veteran was unkempt with an appropriate affect. He also had an anxious mood. The provider stated that the Veteran was advised to treat his PTSD with psychotherapeutic management. The Veteran was provided with a VA examination related to PTSD in November 2010. The Veteran reported having a limited peer group relationship due to being an introvert. Although the Veteran completed some units in college for a commerce course, he stopped attending in 1991 due to financial constraints. Regarding social relationships, the examiner stated that the Veteran had good social relationships with his longstanding friends and his wife's relatives. Although the Veteran described his current marital relationship as ok, the examiner noted that the Veteran's wife contested his report by informing the examiner that the Veteran was always hurting her and the children. The Veteran spent most of his time at home watching television, reading books, and trying to exercise by walking. There was no history of suicide attempts. According to the Veteran's wife, there was a history of violence/assaultiveness as did have a history of spousal and child abuse. It was also reported that the Veteran once had an altercation with a taxi driver as the driver was "foul-mouthed." The examiner described the Veteran's current psychosocial functional status as compromised. The examination showed that the Veteran was clean and casually dressed with normal speech, an anxious mood, a cooperative attitude, and an appropriate affect. His attention was intact, and he was alert and oriented to person, time, and place. The Veteran's thought content and process were unremarkable with no evidence of delusions or hallucinations. The examiner also indicated that there were no notable deficiencies in his judgement, intelligence, or insight. The Veteran was noted to have a sleep impairment that included waking insomnia due to his nightmares. The Veteran had distressing dreams that could occur daily and at least 2 to 3 times a week whenever he was reminded of stressors. At times, he could wake up sweating heavily or trying to hurt his wife. He also experienced flashbacks once or twice a day, and these events could lead to a depressive episode that would last the whole day. The Veteran almost daily initial insomnia could also cause the Veteran to lose sleep, resulting in irritability and a depressive episode. In addition, the Veteran had hypervigilance and an exaggerated startle response for any loud sound. The Veteran did not have inappropriate or obsessive/ritualistic behavior. He also did not experience panic attacks or homicidal or suicidal thoughts. The examiner found that he had poor impulse control with episodes of violence in light of the history of violence/assaultiveness. He was able to maintain minimal personal hygiene, and he did not have problems with activities of daily living. The examiner also found that memory was normal. The Axis I diagnoses were anxiety features and PTSD; and the Axis II diagnoses were average intellectual resources and passive-aggressive personality. However, the examiner did not differentiate the symptoms attributable to PTSD those due to other diagnoses. See Mittleider v. West, 11 Vet. App. 181 (1998). Therefore, the Board considers all manifested psychiatric symptoms as being due to his PTSD. The examiner indicated that the Veteran's cognitive skills had remained intact. The examiner indicated that the Veteran previously worked as a Navy personnel/receptionist, and he was not currently employed. He retired in November 1987 from the Navy, and in 1997 from his civilian job in Guam. The cause of retirement was eligibility by age or duration of work. The examiner summarized that the Veteran's PTSD resulted in the Veteran being withdrawn from others, and he had also started to become irritable and prone to fits of depression. These symptoms affected his physical health, social/interpersonal relationships, and leisure pursuits. The Veteran irritability, anger outburst, and exaggerated startle response directly affected his functional state and life quality. The examiner found that the Veteran's mental disorder symptoms did not require continuous medication and were not severe enough to interfere with occupational and social functioning. In February 2011, a private psychological report noted that the Veteran had developed a temper since service that led him to be abusive towards others. He was also prone to nightmares and feared that he might hurt his wife in his sleep. The provider stated that the Veteran's temper also prevented him from functioning at work. At home, he enjoyed gardening, boxing, reading books on history, and doing odd jobs at home. During the evaluation, the Veteran was fairly groomed in casual attire. The provider indicated that he behaved compliantly. Although the provider found that the Veteran could channel his mental energy to comply with structured tasks despite his susceptibility to emotional upheaval, the provider also found that he had a heightened inner tension that was evident which led him to take a cursory assessment of facts. He was more inclined to approach events with a degree of skepticism, and he warily scanned information for potential threats. This tendency might lead him to misconstrue events and the intentions or motives of others. The provider indicated that his long-term memory was intact, but anxiety could interfere in his handling of new information. This issue could affect his mental flexibility in dealing with new requirements. The Veteran was also alert and oriented, but his cursory treatment of incoming information could cause him to delete, distort, or ignore pertinent details that could alter his interpretation of facts. His ability to perform simple computations and mental arithmetic was low, and he was below average in terms of his practical social knowledge and social judgment as well as his short-term memory and attention span. The provider also noted that as an introvert, the Veteran was energized when he had the opportunity to turn inward and away from conflicts and differences. When the environment became too demanding, he might become easily frustrated, agitated, and discharge anger rashly. He might unconsciously display hostility to persons of lesser significance. He also quick to take offense and rect angrily, especially to perceived ego threats. The Veteran's impatience additionally affected his ability to concentrate. The Veteran's impulse control was found to be poor, and he had marked manifest depression. His psychological insight was described as inadequate. The Axis I diagnoses were anxiety features and PTSD; and the Axis II diagnoses were average intellectual resources and passive aggressive personality. In August 2012, another VA examination related to PTSD was conducted. The only diagnosis was PTSD, chronic. The examiner opined that the Veteran's PTSD was manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran continued to describe himself as an introvert. The examiner found the Veteran to be competent in his ability to manage his financial affairs. His symptoms of PTSD were identified as only including a depressed mood, anxiety, and a chronic sleep impairment. However, the examiner separately noted under the PTSD criteria section that the Veteran had symptoms of difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. The Veteran also informed the examiner that he still had nightmares and felt depressed, he was often irritable towards others, and he overreacted to sounds from loud noises. The Veteran was being treated by a private psychiatrist, including with Aripiprazole medication. He also indicated that he continued to wake up from nightmares drenched in sweat and filled with fear. The Veteran could become so irritable that he was often angry with others and argued about trivial matters. The details regarding the Veteran's social history were also unchanged from those noted during the November 2010 VA examination, including his history of violence/assaultiveness towards his wife and children. Regarding the Veteran’s work history, the examiner noted that the Veteran’s duties in the military initially involved working as a steward and corpsman before he worked as a radiation health technician with duties involving the monitoring and management of radiation-related devices. The examination report detailed that after service, the Veteran stayed for approximately six months in San Diego, California before he decided to migrate back to the Philippines. After he had to leave college in 1991 for financial reasons, he obtained employment as a Navy receptionist in Guam for approximately 3.5 years before he returned home to the Philippines. He had remained retired since that time. In May 2013, a Counseling Record - Narrative Report in the Veteran's VA Vocational Rehabilitation and Employment records stated that the Veteran was interested in obtaining assistance to learn how to operate a computer to occupy himself as well as to learn how to use e-mail with his children and colleagues in a volunteer veteran organization. However, the record stated that the Veteran had no plans to engage in self-employment, and no plans of becoming employed again due to his disabilities. The record stated that his previous job was an appointment clerk in the Naval Hospital in Guam. In this position, he was tasked with arranging medical appointments for dependents and retired veterans. The record stated that he resigned in June 1997 as he wanted to spend more time with his young daughter. The Veteran indicated that he currently had problems with receptive communication due to hearing loss and tinnitus; difficulty with urination due to ureterolithiasis; limitation in prolonged sitting, standing, bending, lifting, and carrying due to back pains; and limitation in social functioning due to discomfort in crowded areas and problems with anger management. The specialist stated that it was anticipated that the Veteran's hearing impairments due to bilateral hearing loss and tinnitus would limit his capacity for work activities that required effective receptive communication skills and performance of duties in a noisy environment. Coronary artery disease would limit his performance of physically strenuous jobs, and PTSD would limit his capacity for work activities which require social capabilities such as interpersonal skills due to anger management problems. The Veteran's lumbar spine disability would also likely limit his capacity for work activities that involved prolonged sitting and standing, bending, stooping, heavy lifting, and carrying. These limitations impaired his ability to prepare for, obtain, or retain employment. In March 2018, a VA treatment record stated that the Veteran had a history of depression. He did not have homicidal or suicidal ideation. In April 2018, a VA treatment record noted that the Veteran was alert and oriented, and he had an appropriate mood and affect. In August 2018, a VA treatment record indicated that the Veteran had symptoms of PTSD and was not on medication. His mood was noted to be calm, and a psychosocial deficit was not found. However, the record indicated that this assessment was conducted for purposes of a left knee preoperative evaluation. In September 2018, a VA treatment record similarly indicated that the Veteran denied having psychosocial issues that could affect his surgery. Symptoms of depression without medication were later noted in October 2018. After reviewing the evidence discussed above, the Board finds that entitlement to a TDIU is warranted based on the combined effect of the Veteran’s service-connected disabilities for the beginning portion of the appeal period effective from April 10, 1999 to January 25, 2009. The record reflects that for the entirety of this period, the Veteran was unable to secure or follow substantially gainful employment as a result of his bilateral hearing loss and ureterolithiasis disabilities. The Veteran identified his problems with hearing loss as one of the reasons for his retirement from his prior full-time position as an appointment clerk in his August 2000 VA Form 21-8940. The Veteran also indicated in the May 2003 statement that his hearing loss was manifested by difficulty understanding words that were spoken, and he suggested in his June 2011 VA Form 21-8940 that this difficulty hearing what others were saying had led to customer complaints in his last employment position. The November 2000 VA examiner also noted that the Veteran's hearing difficulty was most prevalent in noisy situations, and the examiner opined that this hearing loss disability reduced the Veteran's chances of being employed. A similar difficulty with hearing in noisy environments was reported during the September 2003 VA examination. The May 2013 Vocational Rehabilitation record similarly indicated that a hearing impairment stemming in part from bilateral hearing loss would limit the Veteran’s capacity for work activities that required effective receptive communication skills and performance of duties in a noisy environment. The record further indicates that the Veteran did not complete his college degree, and his only civilian work experience was in a public-facing position managing patient appointments for the Naval Hospital in which the Veteran would likely need to verbally communicate with others. The Veteran’s expressed interest in receiving training in computer skills and the use of e-mail in the May 2013 Vocational Rehabilitation record also suggests that he lacked certain skills that would facilitate communication through other mediums. In addition, the November 2000 VA examiner found that the Veteran’s reported urinary frequency affected his sleep and daily activities, these symptoms were attributed to probable urolithiasis since the 1980's and had been persistent since that time, and the symptoms affected the Veteran's ability to gain employment. The September 2003 VA examiner similarly opined that the Veteran's history of hematuria that was probably secondary to ureterolithiasis, urinary symptoms, and frequency affected his usual occupation and daily activities; particularly his sleeping habits. Consistent with this opinion, the May 2013 Vocational Rehabilitation record indicated that symptoms of difficulties with urination due to ureterolithiasis would impact employment. Effective from October 26, 2000, the Veteran’s lumbar spine disability further contributed to the Veteran’s inability secure or follow substantially gainful employment. The records from Dr. O. indicate that the Veteran had sought treatment for back pain since 1999, and the May 2003 VA examiner reported that the Veteran’s back pain included flare ups caused by cold weather or a bad position occurring on average 2 to 3 times a week and lasting for a few minutes to hours. The examination report reflects that the Veteran’s flare ups included symptoms pain resulting in slight to moderate limitation of motion. W.P.’s January 2007 statement also indicated that the Veteran’s lumbar spine disability was associated with difficulty with ambulation, driving, and prolonged standing or sitting; and the Veteran identified his inability to sit in a chair for very long as a factor in his inability to secure or follow substantially gainful employment. See June 2011 VA Form 21-8940. The May 2013 Vocational Rehabilitation record further supports the conclusion that functional limitations in activities such as sitting would negatively impact the Veteran’s capacity to perform these activities in an employment setting. The Board finds that the weight of the evidence supports finding that the combined effect of the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment from April 10, 1999 to January 25, 2009. The Board acknowledges that the Veteran appears able to perform certain aspects of daily living. However, the law recognizes that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity. See 38 C.F.R. § 4.10. In addition, a Veteran does not have to prove that he is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award. See 38 C.F.R. § 3.340(a); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). As such, entitlement to a TDIU on an extraschedular basis based on the combined effects of the Veteran’s service-connected disabilities is warranted from April 10, 1999 to January 25, 2009. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As previously indicated, the Veteran is already in receipt of a TDIU for the period from January 26, 2009 to June 27, 2012. He is also in receipt of a 100 percent combined schedular evaluation effective from June 27, 2012. In Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court held that a TDIU satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more, for purposes of entitlement to SMC for a housebound rating. In other words, 38 U.S.C. § 1114(s) for housebound benefits does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent. Id. A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a total rating. Id. As the Veteran has not yet been awarded SMC pursuant to 38 U.S.C. § 1114(s) at any point during the appeal period, the Board will consider whether a TDIU is warranted for a single disability during the appeal period on and after January 26, 2009. The Board notes that such a TDIU analysis for purposes of determining whether SMC may be awarded pursuant to 38 U.S.C. § 1114(s) for the period prior to January 26, 2009 is not reasonably raised by the record. Prior to January 26, 2009, the Veteran’s combined evaluation was no greater than 40 percent. As such, the award of a TDIU based on any single disability would not lead to the award of SMC under 38 U.S.C. § 1114(s) as the Veteran’s remaining disability ratings would not combine to a rating of at least 60 percent. The record also does not indicate that the Veteran was housebound during this period. For the period effective from January 26, 2009, the Board will first consider whether a TDIU is warranted based solely on the effects of the Veteran’s PTSD. Although the Veteran’s 70 percent rating for the period effective from January 26, 2009 to August 28, 2012 renders him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation based on any one disability; his 30 percent rating for PTSD on and after August 29, 2012 does not. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, 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). As such, entitlement to SMC based on statutory housebound status requires an extraschedular TDIU determination if the TDIU award is solely based on PTSD for the period effective from August 29, 2012. 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 Regional Office (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, 239-40 (2015) (Kasold, J., concurring). 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. this contention is rejected." Id. at 5. (emphasis added). 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 (emphasis added). 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 consequently consider whether a TDIU is warranted based on PTSD alone at any point in the appeal period on and after January 26, 2009. After considering the foregoing evidence, the Board finds that the evidence is at least in equipoise on the question of whether the severity of the Veteran's service-connected PTSD alone during the period on and after January 26, 2009 prevented him from securing or following substantially gainful employment. Although the record indicates that the Veteran’s symptoms from his other service-connected disabilities also impacted his employment, the Veteran identified his PTSD as a disability that prevented him from securing or following substantially gainful employment in his June 2011 VA Form 21-8940. In that form, the Veteran explained that he found it difficult to be around many people, and he had problems with anger outbursts as a result of his PTSD. The December 2008 private evaluation and the November 2010 VA examination reflect that the Veteran had a history of impatience and irritability with violent outbursts, including incidents of violence towards family members and a taxi driver. The February 2011 provider similarly described the Veteran as abusive towards others as a result of his temper, and he noted that this issue prevented his ability to function at work. The August 2012 VA examiner indicated that the Veteran continued to suffer from irritability and anger, noting that the Veteran also indicated he was often argumentative. In addition, the November 2010 VA examiner described the Veteran as withdrawn from others and prone to episodes of depression, stating that his PTSD symptoms affected both social and interpersonal relationships. The February 2011 provider additionally reported that the Veteran’s symptoms of anxiety could affect his ability to process new information, and his impatience affected his ability to concentrate. In addition, a demanding environment could aggravate the Veteran’s introverted tendencies and cause an anger reaction. The August 2012 VA examiner also found that the Veteran had difficulty concentrating, and the examination report did not reflect that his social functioning had improved. The May 2013 Vocational Rehabilitation record also indicated that the Veteran’s PTSD would limit his capacity for work activities which require social capabilities such as interpersonal skills due to anger management problems. Although no notable symptoms were documented in the subsequent VA treatment records, it does not appear that the Veteran underwent a comprehensive evaluation of his psychiatric functioning that was comparable to the prior evaluations of record. The Board finds that the Veteran’s difficulty with irritability and outbursts in addition to his noted difficulties in interpersonal relationships would negatively impact employment, especially considering that the Veteran’s post-service work experience was limited to a position where he needed to interact with the public. The evaluations further suggest that the Veteran’s symptoms of PTSD would negative affect his ability to successfully process new information and maintain concentration. Resolving all benefit of the doubt in the Veteran's favor, the Board finds that the Veteran's service-connected PTSD has rendered him unable to secure or follow a substantially gainful occupation, and entitlement to a TDIU on an extraschedular basis based on the effects of this disability alone is warranted for remaining portion of the appeal period during which a TDIU award is not already in effect. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s). In light of the above decision, the Veteran may be entitled to SMC pursuant to 38 U.S.C. § 1114(s) at any point on and after January 26, 2009. See Bradley, 22 Vet. App. at 294; Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if a veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is 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) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). As previously indicated, there is sufficient evidence to support finding that Veteran’s TDIU award during the period on and after January 26, 2009 may be based on his PTSD alone; and this award consequently meets the criteria for a single service-connected disability rated as totally disabling for section 1114(s) purposes. See Bradley, 22 Vet. App. At 293-94. In addition, the combined rating of the Veteran's other service-connected disabilities effective from January 26, 2009 is at least 60 percent. During this period, the Veteran was in receipt of at least a 10 percent rating for coronary artery disease, a 10 percent rating for tinnitus, a 30 percent rating for his lumbar spine disability, and a 20 percent rating for diabetes mellitus with erectile dysfunction. These disability ratings combine to a 60 percent rating. 38 C.F.R. §§ 4.25. The Board notes that these disabilities are also separate and distinct from the Veteran’s service-connected PTSD as they involve different anatomical segments or bodily systems. As the Veteran has a single service-connected disability rated as totally disabling for section 1114(s) purposes and additional service-connected disabilities that are independently ratable at 60 percent or more, the criteria for entitlement to SMC under 38 U.S.C.§ 1114(s) are met. As such, SMC at the housebound rate is warranted effective from January 26, 2009. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.