Citation Nr: 21014777 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-18 246 DATE: March 15, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to special monthly compensation (SMC) based upon the need for aid and attendance (A&A) or housebound status is remanded. FINDING OF FACT The preponderance of the evidence indicates that, due to her service-connected disabilities, the Veteran was unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1988 to October 1992 in the United States Marine Corps. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied entitlement to a higher disability rating for PTSD. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a March 2020 Joint Motion for Remand (JMR) the parties agreed that the Board’s decision should be vacated. In that same month, the Court vacated the Board’s decision, and remanded the issue to the Board for action consistent with the JMR. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Similarly, as to SMC claims, the Court has held that a claim for an increased rating may include the inferred issue of entitlement to SMC when reasonably raised by the record, even where the Veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). As such the issues of entitlement to a TDIU and SMC are before the Board and are addressed in the decision below. 1. Entitlement to a TDIU due to service-connected disabilities. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU 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. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). But for the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, should be considered. Id. For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word substantially suggests intent to impart flexibility into a determination of a veteran’s overall employability, as opposed to requiring the appellant to prove that he or she is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In this case, the Veteran contends that she is unable to secure employment due to her service-connected disabilities. The Veteran is service connected for loss of more than half of maxilla, residuals of head injury at 50 percent disabling from January 2018 and at 0 percent prior to that, posttraumatic migraine headaches at 30 percent disabling, PTSD at 30 percent disabling, status-post closed head injury with seizures at 20 percent disabling, tinnitus at 10 percent disabling, and residuals laceration, right little finger at 0 percent disabling. The Veteran’s combined total disability rating was 70 percent prior to January 26, 2018 and 80 percent thereafter. ¬Therefore, the percentage criteria for TDIU are met and entitlement to TDIU is considered on a schedular basis. 38 C.F.R. § 4.16(a). The Veteran submitted a private opinion from a qualified vocational evaluator in December 2020. The evaluator reviewed the Veteran’s claims file, noted a thorough review of the Veteran’s medical records, and cited to specific relevant records in providing her opinion. The evaluator noted that her opinion in this matter relied solely on the symptoms and limitations related to the Veteran’s service-connected PTSD. The opinion rendered was fully supported by the Veteran’s medical record. Lay evidence and the vocational interview with the Veteran only further substantiated the conclusions. The evaluator noted anxiety, hypervigilance, irritability, anger, depressed mood, a tendency to isolate, difficulty with relationships, and impaired sleep. She also reported difficulty maintaining relationships even with family members. The Veteran had a lack of interest and motivation to do even simple tasks. She also noted decreased concentration and attention, as well as difficulty with her memory and limitations in performing activities of daily living. The Veteran needed reminders and cues to shower and change her clothes. The December 2020 evaluator reported that the Veteran last worked in a substantially gainful capacity from November 2002 until July 2005. She worked for one week in 2018 and was fired. In July 2019, she worked for five months part time as a landscape laborer but was again fired. She tried working as an Uber and Lyft driver for one month in January 2020 but asserted she could not do it due to people disrespecting her. In April 2020 she worked for two weeks for Walmart as a trainee, but she fell apart during her first shift on the floor. She worked for one week in June 2020, but she could not process the information and could not remember things, so she quit. She attempted to work for two weeks in August 2020, but she walked off the job and did not return due to the loud noises and the number of men who worked in that environment. The Veteran’s SSA earnings statement showed that her earnings were below the federal poverty threshold in 2018 and 2019. Her 2020 earnings also fell under the federal poverty threshold. She was unable to maintain any of her various positions between 2018 and August 2020 for at least 12 consecutive months. The Veteran has been limited to working only in marginal and unmaintained capacities since at least July 2015 due to symptoms and limitations associated with her service-connected conditions. The evaluator opined that, in considering the medical records from multiple service providers as they relate to limitations of the Veteran’s service-connected PTSD, it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, to include sedentary unskilled work, since at least July 2015 to the present solely as a result of her service-connected PTSD. It is at least as likely as not that the Veteran is unable to satisfy the standards of adequate pace, productivity, reliability, and workplace communication due to symptoms of her PTSD alone, since at least 2015. The Veteran’s severe symptoms associated with her service-connected PTSD include, but are not limited to: difficulty maintaining appropriate social behavior; difficulty interacting with coworkers, peers, and the general public; as well as significant difficulties with memory, maintaining concentration, focus, and pace due to racing and intrusive thoughts, anxiety, panic attacks, poor quality of sleep with daytime fatigue, depressed mood, hypervigilance, irritability, isolative tendencies, and an overall lack of motivation. Based on the evidence of record, which the evaluator summarized, in her vocational opinion, it is at least as likely as not that the amount of time the Veteran would be impacted by distressing and distracting symptoms of her service-connected PTSD would render her off-task more than would be tolerated by employers. She also opined that she would be unable to meet the basic, appropriate, and professional interpersonal communication requirements of a workplace due to the interpersonal limitations related to her PTSD. The evaluator explained that deficiencies in work productivity, concentration, memory, thinking, and mood would certainly preclude an individual’s ability to regularly meet pace and reliability expectations of the competitive workforce, as is the case for this Veteran. Her symptoms would at least as likely as not distract her to an extent that would preclude her from sustaining concentration on work tasks for two consecutive hours. This would cause her to be off task during lapses in concentration, compounding throughout the day, at least as likely as not leading to off task behavior in excess of industry standards of 10 percent of the workday. As a result of these significant psychiatric symptoms, it is at least as likely as not that the Veteran would be unable to produce a certain minimum amount of work each day sufficient to meet employer expectations of adequate pace and productivity. The evaluator opined that the Veteran’s issues with concentration, persistence, and pace due to her PTSD would preclude her from completing tasks accurately and in a timely manner, which would not be tolerated by employers in substantially gainful employment. Therefore, it is at least as likely as not the Veteran would be off task, unreliable, and performing below the expected productivity level more than the acceptable industry standards solely due to symptoms of her service-connected PTSD, regardless of the skill or exertional level of an occupation. Additionally, the evaluator noted that no field of employment would allow an employee to work in absolute isolation. Interaction with others is required to at least some degree in all employment and these interactions are expected to be appropriate, courteous, and professional. As the ability to work with others appropriately and effectively is a basic requirement of all competitive employment, the evaluator opined that the Veteran’s social limitations due to her service-connected PTSD alone would at least as likely as not preclude her from securing or following substantially gainful employment in any occupation, regardless of skill or exertional level. Regardless of the Veteran’s vocational profile, she was unable to perform any occupation, regardless of skill or exertional level, due to her inability to meet the demands of even unskilled work, with marked impairments in concentration, and her inability to maintain pace, productivity, and communicate effectively with others as a result of her service-connected PTSD. The evaluator concluded that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, since at least July 2015 to the present solely due to her service-connected PTSD. The evaluator noted that this opinion was supported by the medical evidence of record alone. The opinion was rendered despite any medical professional’s opinion that the Veteran can engage in work activity. Medical professionals are qualified to define the physical or emotional limitations extending from a condition but have no expertise in translating this information into opining on whether this degree of restriction or limitation, or both, prevents one from working. Upon review of the record, the Board finds the evidence to indicate that the Veteran was unable to obtain or maintain substantially gainful employment. The Board finds no adequate basis to reject the favorable evidence of record based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted. REASONS FOR REMAND 2. Entitlement to a disability rating in excess of 30 percent for PTSD. The record shows that the Veteran applied for Social Security Disability Insurance. VA must attempt to obtain relevant records from a Federal department or agency unless further attempts would be futile. These records include medical and other records from the Social Security Administration (SSA). See 38 C.F.R. § 3.159(c)(2). In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the Court of Appeals for Veterans Claims (CAVC) found that VA’s duty to assist specifically includes requesting information from other Federal departments. In Baker v. West, 11 Vet. App. 163, 169 (1998), the CAVC further stated that VA is required to obtain evidence from other agencies, including decisions of the SSA. No SSA records are associated with the claims file. Therefore, the Board finds that remand is necessary to obtain any outstanding SSA records. 3. Entitlement to SMC based upon the need for A&A or housebound status is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to SMC because no VA examiner has opined whether the Veteran’s disability meets the requirements, to include whether the Veteran has such significant disabilities as to be in the need of regular A&A of another person or is housebound. On remand, the Veteran should be afforded a VA examination. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the SSA, to include any determinations regarding disability. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for a VA examination for housebound status or permanent need for regular aid and attendance by an appropriate clinician to determine the current level of severity of all impairment resulting from her service-connected disabilities. The claims folder, including a copy of this remand, should be made available to the examiner for review prior to the examination. The examiner should acknowledge such review in the examination report. Following a complete review of the evidence of record and with consideration of the Veteran’s lay statements, assuming the statements are credible for the limited purpose of the request herein, the examiner should address whether the Veteran is so helpless or so nearly helpless as to require the regular aid and attendance of another person due to her service-connected disabilities, or whether the Veteran is permanently housebound because of her service-connected disabilities. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. 3. After undertaking the development above and any additional development deemed necessary, the Veteran’s claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patricia Veresink, 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.