Citation Nr: 21021378 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 13-25 264A DATE: April 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due solely to service-connected posttraumatic stress disorder (PTSD) is granted, effected December 4, 2010. REMANDED Entitlement to an award of special monthly compensation (SMC) based on a TDIU due solely to service-connected PTSD is remanded. FINDING OF FACT Effective December 4, 2010, the evidence establishes that the Veteran is not able to secure or follow substantially gainful employment due solely to service-connected PTSD. CONCLUSION OF LAW The criteria for a TDIU due solely to service-connected PTSD have been met, effective December 4, 2010. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2000 to December 2010. In September 2017, the Board of Veterans’ Appeals (Board) noted that a September 2017 rating decision inferred a TDIU claim as part of several increased rating claims and then remanded the TDIU claim for further development. A March 2018 rating decision granted a TDIU due to all service-connected disabilities, effective August 8, 2017. In October 2018, the Board issued a decision on the Veteran’s pending increased rating claims, but issued no decision on a TDIU. In July 2019, the United States Court of Appeals for Veterans Claims (Court) granted the parties’ Joint Motion for Partial Remand. The Court found that the Board’s October 2018 decision failed to consider whether the Veteran was entitled to a TDIU due to all service-connected disabilities prior to August 8, 2017, and to a TDIU due solely to service-connected PTSD as of August 8, 2017. In December 2019, the Board granted a TDIU due to all service-connected disabilities, effective November 15, 2016. The Board remanded whether the Veteran was entitled to a TDIU due to all service-connected disabilities prior to November 15, 2016, and to a TDIU due solely to service-connected PTSD as of November 15, 2016. A July 2020 rating decision effectuated the Board’s grant of a TDIU due to all service-connected disabilities, effective November 15, 2016. A January 2021 rating decision granted a TDIU due to all service-connected disabilities, effective December 4, 2010. As a preliminary matter, the Board notes that, in a March 2021 brief, the Veteran’s representative asserts that the Veteran is entitled to an increased schedular rating for service-connected PTSD. In February 2021, the Board granted an increased evaluation of 70 percent for PTSD from December 4, 2010, to August 7, 2017. A March 2021 rating decision effectuated the Board’s decision. Because the Board granted the increased evaluation, any appeal of this decision must be made to the United States Court of Appeals for Veterans Claims. Accordingly, a claim of an increased schedular rating for PTSD is not pending before the Board. The Board further notes that, in the March 2021 brief, the representative asserts an earlier effective date for a TDIU. To the extent that this assertion relates to a TDIU due to all service-connected disabilities, the Board notes that the January 2021 rating decision granted such a TDIU as of the date the Veteran was granted service connection. An effective date for a TDIU may not be awarded prior to the award of service connection for the service-connected disabilities upon which the award of a TDIU is based. See Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019). Accordingly, the issue of an earlier effective date for a TDIU due to all service-connected disabilities is not pending before the Board. TDIU due solely to service-connected PTSD A TDIU is warranted if a veteran is unable to secure or follow substantially gainful employment as a result of a service-connected disability or disabilities. See 38 C.F.R. § 4.16(a). Consideration may be given to the veteran’s education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16. As a preliminary matter, the Board notes that the Veteran’s PTSD includes all symptoms related to previously diagnosed sleep disorders, to include idiopathic hypersomnia. In December 2017, the VA examiner stated that the Veteran’s sleep disruption is a symptom of PTSD and not a diagnosed separate sleep disorder of primary hypersomnia or hypersomnolence. The Veteran was originally assessed a 10 percent rating and then a 30 percent rating for hypersomnolence disorder (previously primary hypersomnia). The Veteran is currently assessed a 70 percent rating for PTSD, effective December 4, 2010, and a TDIU due to all service-connected disabilities, effective December 4, 2010. A May 2008 sleep study showed hypersomnia likely due to poor sleep hygiene and chronic sleep deprivation. At an October 2010 VA examination, the Veteran reported falling asleep whenever he sat still. The VA examiner stated that the Veteran could comprehend and complete simple and complex tasks and could work on a full-time basis from a mental health point of view, but that any employer should be informed of his history of repeatedly falling asleep during the day. At VA sessions for sleep consultation, to include May 2011, April 2012, July 2012, October 2014, and June 2015, the Veteran reported being very sleepy during the day and drifting off when he did not want to, including while driving and during college classes. The VA physician diagnosed idiopathic hypersomnia. At a November 2016 VA examination, the Veteran reported earning an associate’s degree in Biblical Studies and completed some courses for a bachelor’s degree, but he reported failing a number of classes due to falling asleep during class. The Veteran reported that he had not worked since separating from service, but that he volunteered at his church. The VA examiner opined that the severity of the Veteran’s hypersomnolence disorder was moderate to severe. At a September 2017 VA examination, the VA examiner identified chronic sleep impairment as a symptom of the Veteran’s PTSD. A November 2017 VA treatment record noted the Veteran’s reports of feeling sleepy throughout the day and falling asleep without warning. In January 2018, the Veteran reported a high chance of dozing during various activities, to include reading, watching television, talking with someone, and sitting inactive in a public place. In May 2019, an administrative law judge (ALJ) for the Social Security Administration (SSA) found that the Veteran was disabled due to idiopathic hypersomnia as of December 2010. The ALJ found that the Veteran was likely to fall asleep at the workplace and be off task more than 15 percent of the workday. The ALJ also noted that the Veteran would be “off task excessively during the workday due to his hypersomnia” and relied on vocational expert testimony in determining that the Veteran was disabled. At a December 2020 VA examination, the VA examiner indicated that the Veteran provided a good consistency of statements in terms of portrayal of symptoms. The VA examiner stated that the Veteran was mildly or moderately impaired in his ability to perform various work tasks and could secure and follow substantially gainful employment despite service-connected PTSD. The VA examiner, however, stated that the following reasonable accommodations would be necessary: flexible scheduling to allow time for counseling and appointments; allowing calls to medical providers during work hours; more frequent breaks and backup coverage as needed; telecommuting options; partitions of closed doors for increased privacy; reducing clutter and distractions in the workplace; written as well as verbal instructions; allowing a service animal at work; and assigning a mentor. After evaluating the conflicting evidence of record, the Board finds that a TDIU due solely to service-connected PTSD is warranted. The evidence of record, to include the VA treatment records, consistently documented the Veteran’s reports of daytime sleepiness, to include while driving and during college classes. These reports are consistent with the October 2010 VA examiner’s statement that any employer should be informed of the Veteran’s history of repeatedly falling asleep during the day; the November 2016 VA examiner’s characterization of the Veteran’s symptoms as moderate to severe; and the December 2020 VA examiner’s statement that the Veteran provided a good consistency of statements. The Board notes that the Veteran has not worked since service and attempted to take college classes, but was unsuccessful due to his symptoms. The Board finds that the Veteran’s consistent reports are credible and would be inconsistent with the ability to secure and follow substantially gainful employment. Accordingly, the Board finds that the Veteran is entitled to a TDIU due solely to service-connected PTSD. The Board has considered the VA examiner’s opinions and the SSA disability decision. While several VA examiners opined that the Veteran could work from a mental health standpoint, such opinions are reserved to the Board. More importantly, the Board finds that the combined effect of the reasonable accommodations identified by the December 2020 VA examiner would preclude employment. Indeed, while SSA disability decisions are not binding on the Board, the SSA ALJ stated that the Veteran would be “off task excessively during the workday due to his hypersomnia” and relied on vocational expert testimony in determining that the Veteran was disabled. The vocational expert’s testimony provides probative evidence as to the vocational impact of the Veteran’s service-connected PTSD. The Board finds that the award of a TDIU is effective December 4, 2010. Here, the evidence showed that the Veteran had significant sleeping symptoms since separating from service in December 2010. An effective date for a TDIU may not be awarded prior to the award of service connection for the service-connected disabilities upon which the award of a TDIU is based. See Delrio, 32 Vet. App. at 248. Accordingly, the award of a TDIU due solely to service-connected PTSD is December 4, 2010, the date that service-connection was granted for PTSD. REASONS FOR REMAND In July 2019, the Court stated that the Board failed to discuss whether a TDIU due solely to service-connected PTSD was warranted, for purposes of determining whether SMC was warranted. While the Board has found that a TDIU due solely to service-connected PTSD is warranted, the Board is unable to make a fully-informed decision on whether SMC is warranted based on that finding. The Board notes that the Veteran does not currently have additional service-connected disability or disabilities ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). On remand, the Veteran should be provided with proper notice regarding the evidence necessary to establish entitlement to SMC, to include based on aid and attendance or housebound benefits. (Continued on the next page.)   The matter is REMANDED for the following action: Provide the Veteran with proper notice regarding the evidence necessary to establish entitlement to SMC, to include based on aid and attendance or housebound benefits. Adjudicate the claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ormson, 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.