Citation Nr: 21022254 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-13 763 DATE: April 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 1, 2018, to include on an extraschedular basis, is denied. Entitlement to special monthly compensation (SMC) beginning February 1, 2018, for a single 100 percent rating with additional service-connected disabilities independently ratable at 60 percent or more is granted. FINDINGS OF FACT 1. During the periods of time between March 29, 2011, to February 28, 2013, and from July 2, 2017 to January 31, 2018, the Veteran was in receipt of a 100 percent disability rating and awarded a grant of TDIU effective February 1, 2018. 2. The preponderance of the evidence does not establish that the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment prior to February 1, 2018. 3. From February 1, 2018, the award of TDIU is based upon the disability of hemiparesis of the left lower extremity with the additional service-connected disabilities independently ratable at 70 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU prior to February 1, 2018, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). 2. The criteria for entitlement to a SMC at the housebound rate have been met beginning February 1, 2018. 38 U.S.C. §§ 1114(s), 5107 (2018); 38 C.F.R. §§ 3.102, 3.350, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1966 to March 1968 and from January 1971 to October 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012, October 2013, and March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is of record. This case was previously before the Board in March 2019 and September 2020, both times resulting in a remand of the present issue for further development. The case has now been returned to the Board for further appellate action. Entitlement to a TDIU prior to February 1, 2018. The Veteran contends that he has been unable to secure or follow substantially gainful employment since his retirement from the United States Postal Service as a driver in 2008. During previous adjudication of the Veteran’s claims before the Board, the Board found that the record warranted referral for consideration for a TDIU on an extraschedular basis for the period prior to April 5, 2018. On remand, the RO awarded TDIU effective as of February 1, 2018, and referred the issue of extraschedular consideration prior to that date to the Director of Compensation Services (Director). Upon review of the Veterans claims file, the Director of Compensation Service (Director) denied entitlement to an extraschedular TDIU in December 2020, finding that the evidence of record did not satisfactorily demonstrate that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. As the Veteran’s claim of entitlement to a TDIU on an extraschedular basis was denied by the Director, the Board now has jurisdiction to address the merits of the Veteran’s claim. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Prior to February 1, 2018, the Veteran was service-connected for several disabilities at varying rates. Specifically, during the period between March 29, 2011, to February 28, 2013, the Veteran was in receipt of a 100 percent disability rating for status post prostatectomy. During that time, his additional service-connected disabilities included: hypertensive vascular disease, 10 percent; surgical scar residual status, 10 percent; surgical scar status post prostatectomy, 10 percent; and noncompensable (0 percent) erectile dysfunction. The combination of those disabilities, excluding the status post prostatectomy, was 30 percent. As of March 1, 2013, the Veteran’s status post prostatectomy was reduced from 100 percent to 20 percent. His overall combined disability rating during the period from March 1, 2013, to July 2, 2017, considering the aforementioned ratings, was 40 percent. As of July 2, 2017, the Veteran was awarded a 100 percent rating for hemorrhagic stroke with residual left hemiparesis. His remaining service-connected disabilities during that time combined to the aforementioned 40 percent. The 100 percent rating was effective through January 31, 2018, after which it was decreased to 30 percent, effective February 1, 2018 with the additional service-connected disability of left hemiparesis of the lower extremity at 20 percent. As the Veteran did not meet the schedular criteria for a TDIU prior to February 1, 2018 (see 38 C.F.R. § 4.16(a)), his claim may be considered under the criteria of 38 C.F.R. § 4.16(b). In support of the Veteran’s claim, a VA Form 21-8940 was submitted in September 2012. In that record, the Veteran described the necessity of retiring from his position as a United States Postal Service driver because of frequent urination requiring him to make several stops while driving. He reiterated these contentions during his September 2018 hearing before the Board, describing that the frequent need to use a restroom for urination due to his status post prostatectomy interfered with his employment. A VA examination report from April 2013 reveals that the Veteran’s disability of status post prostatectomy negatively impacts his ability to work in that it requires him to be close to a bathroom. The examiner noted that sedentary employment would be possible with a bathroom facility nearby. An October 2017 VA treatment record depicts that the Veteran reported no urinary incontinence symptoms at that time. Most recently, in a February 2020 VA examination, the examiner found that the Veteran would miss one to two weeks of work over the course of a year due to his disability. It is noted, however, that this report is of less probative value as it represents the status of the Veteran’s disability outside of the applicable time-frame in consideration for the instant claim. Nevertheless, providing the Veteran the benefit of the doubt and viewing the evidence in the light most favorable to the Veteran, the Board considers this record in support of his claim as showing a progression of his symptoms. In a letter from a private treating physician dated April 10, 2013, it was explained that the Veteran’s urinary symptoms were worsened by driving a mail truck and not having easy access to restrooms. Additional VA examinations of record addressing the Veteran’s service-connected disabilities of hypertensive vascular disease, surgical scar residual status, surgical scar status post prostatectomy, and erectile dysfunction, have also been considered. However, none of them indicate symptoms which result in adverse functional limitations or otherwise interfere with the Veteran’s ability to maintain substantially gainful employment. Although the Veteran posits in his September 2012 notice of disagreement that his service-connected scar caused pain when sitting, he also provided testimony that he alleviates the pain with the use of over-the-counter medicines when necessary and has not provided any information that the pain restricts him from sitting. The Veteran’s employment history depicts a long-standing career with the United States Postal Service for several decades until 2008, at which time he retired due to urinary frequency. He completed two years of college in transportation management, attending night school at the City College of Chicago. The Board has considered the records addressing the Veteran’s claims, as well as the Veteran’s personal assertions, and finds that the evidence does not demonstrate that the Veteran’s service-connected disabilities rendered him unable to secure and follow substantially gainful employment prior to February 1, 2018. The question of total disability based upon unemployability is not simply based upon a finding that a disability negatively impacts a veteran’s ability to work, but whether a particular veteran is capable of performing the physical and mental acts required by employment and not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The Veteran’s frequent need to use the bathroom does not render him unable to secure and follow substantially gainful employment in light of his education and occupational experience. For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to a TDIU on an extraschedular basis. The benefit of the doubt doctrine is therefore not for application in this instance, and the claim for a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.340. Entitlement to Special Monthly Compensation For the first time on appeal, the Veteran’s representative has made an argument for entitlement to special monthly compensation (SMC) based upon additional service-connected disabilities independently ratable at 60 percent or more pursuant to 38 U.S.C. § 1114(s). In this regard, the Board claims jurisdiction over an issue that, while not explicitly stated as being on appeal, was part of the initial rating appeal. The Veteran has effectively raised a claim for SMC based upon a total disability rating with additional disabilities independently ratable at 60 percent or more. See 38 U.S.C. § 1114(s). The Board acknowledges that this issue has not been addressed or adjudicated by the agency of original jurisdiction. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that a request for an increase in benefits should be inferred as a claim for SMC regardless of whether it has been raised by the Veteran or previously adjudicated. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). Moreover, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level), when considered together with another disability or disabilities separately rated at 60 percent or more, could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114(s). In Bradley, the veteran had been in receipt of a TDIU until he was awarded a 100 percent combined rating. Bradley, 22 Vet. App. at 280. The Court determined, however, that “the Secretary should have assessed whether [the veteran’s] TDIU rating was warranted based on his [posttraumatic stress disorder (PTSD)] alone before substituting a combined total rating for his TDIU rating.” Id. at 294. In that regard, the Court reasoned that “a TDIU rating for PTSD alone would entitle [the Veteran] to SMC benefits as an additional benefit not otherwise provided to persons with a 100 [percent] combined rating.” Id. As is relevant here, VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley, 22 Vet. App. at 294. As of February 1, 2018, it has been found that the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment. Based upon the recommendation from the Director of Compensation services, TDIU on an extraschedular basis was granted from February 1, 2018, to April 5, 2018, based upon service-connection of hemiparesis of the left lower extremity. The Director specifically cited to this disability as negatively impacting the Veteran’s ability to work. As of April 5, 2018, the only change to the Veteran’s combined rating was as a result of service connection for diabetes mellitus, type II (DM) at a 10 percent disability rating. It is not argued, nor does the medical evidence suggest, that this disability in any way interferes with the Veteran’s ability to work. What can be gleaned from the record, including consideration of the Board’s holding above and the recommendation from the Director, is that the grant of extraschedular TDIU from February 1, 2018, and schedular TDIU from April 5, 2018, is based solely on the occupational impact caused by the Veteran’s left hemiparesis of the lower extremity. As of February 1, 2018, the remaining service-connected disabilities of status post prostatectomy (20 percent); hemorrhagic stroke (30 percent); hypertensive vascular disease, surgical scar, scar status post prostatectomy, adjustment disorder, and DM, each at 10 percent, and noncompensable erectile dysfunction, result in a combined disability rating of 70 percent. Therefore, as of February 1, 2018, the record establishes that the Veteran is entitled to SMC pursuant to 38 U.S.C. § 1114(s). Accordingly, the Board grants SMC from February 1, 2018, pursuant to 38 U.S.C. § 1114(s), for the finding of a service-connected disability rated as total and additional service connected disabilities independently ratable at greater than 60 percent. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, 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.