Citation Nr: 21023628 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 10-36 729 DATE: April 21, 2021 ORDER From July 1, 2010, entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. From July 1, 2010, entitlement to special monthly compensation at the housebound rate is granted. FINDINGS OF FACT 1. From July 1, 2010, the Veteran has been incapable of obtaining and maintaining substantially gainful employment due to his service-connected posttraumatic stress disorder (PTSD). 2. From July 1, 2010, the Board finds that the Veteran is statutorily housebound, based upon a grant of a TDIU due to his service-connected PTSD, and a combined rating in excess of 60 percent for his other service-connected disabilities. CONCLUSIONS OF LAW 1. From July 1, 2010, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From July 10, 2010, the criteria for special monthly compensation, at the housebound rate, have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 1983 to September 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in March 2010. The Board remanded the case to the AOJ in March 2016; and in a March 2019 decision, the Board denied the Veteran’s claim of entitlement to a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2020, pursuant to a Joint Motion for Remand, the Court vacated the March 2019 decision and remanded the matter to the Board for action consistent with the Joint Motion. 1. Entitlement to a TDIU The Veteran seeks a total disability rating based upon individual unemployability. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes 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, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as “one disability” to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. Id. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran’s particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s claim for an increased rating for his service-connected PTSD was received in November 2019. From November 18, 2009 to March 26, 2014, the Veteran had a rating of 50 percent for his service connected PTSD and a combined disability rating of 90 percent for his service connected disabilities, which included asthma, bilateral knee disabilities, a low back disability, a right toe disability, tinea versicolor, GERD, radiculopathy of the left lower extremity, ganglion cyst of the right wrist, thrombocytopenia, and erectile dysfunction. From March 27, 2014, the Veteran had a 100 percent rating for his service connected disabilities, which included PTSD, asthma, bilateral knee disabilities, a low back disability, a right toe disability, tinea versicolor, GERD, radiculopathy of the bilateral lower extremities, ganglion cyst of the right wrist, thrombocytopenia, and erectile dysfunction. As such, the Veteran has met the schedular rating percentage criteria for TDIU under 38 C.F.R. § 4.16(a) throughout the period on appeal. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Moreover, entitlement to TDIU from May 27, 2014 onwards is not moot. Despite that the Veteran already is in receipt of a 100 percent combined schedular rating since March 27, 2014, VA has a duty to maximize benefits and therefore must consider whether an award of TDIU based on a single disability is warranted, for the sole purpose of determining eligibility to a special monthly compensation (SMC) at the housebound rate. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). SMC is payable where a veteran has a single service-connected disability rated as 100 percent disabling and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. See 38 C.F.R. § 3.350 (i)(1). A separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Bradley v. Peake, 22 Vet. App. 280 (2008). As stated above, the Veteran’s claim for an increased rating for his service-connected PTSD was received in November 2009; a formal claim for TDIU was initially received in December 2020. The Veteran reported that his service-connected PTSD, asthma, painful and unstable scars from residuals of surgical procedures of the right great toe, groin and chest, right knee degenerative joint disease (DJD) and internal derangement, and left knee DJD, intervertebral disc syndrome, and radiculopathy of the bilateral lower extremities prevented him from securing or following a substantially gainful occupation. He indicated that he became too disabled to work in June 2010. He reported that in 2001 he earned $33,050 in the Army, which had been the most he had ever earned in a year. He reported that from October 2002 to June 2010, he was employed full-time as a maintenance technician 40 hours a week and that his highest gross earnings per month were $1950. The Veteran also reported that he resigned from his job because of his medical disabilities, specifically because of his PTSD and his back disability, and up until that point, and since 2007, the Veteran had been working for a property management company performing maintenance work. The Veteran has been unemployed from at least July 1, 2010. In June 2010, the Veteran’s employer noted that the Veteran had officially given his two weeks’ notice of resignation due to medical reasons on June 16, 2010. See also December 2020 third party correspondence; December 2020 Social Security Administration (SSA) statement. A January 2013 SSA record indicates that the Veteran’s last day of work was June 30, 2010. Additionally, in various medical records and lay statements the Veteran consistently indicated that he stopped working as a maintenance technician due to stress from his PTSD. See September 2010 VA examination for hemic disorders, October 2010 VA general medical examination, January 2011 VA examinations. The Veteran was hired by his employer in approximately October 2002, and entered vocational rehabilitation in November 2002. January 2007 VA special report of training; December 2009 lay statement. The Veteran’s supervisor noted that when the Veteran had been initially hired in approximately 2002 his duties mainly consistent of computer networking and some maintenance. However, due to cutbacks, he became one of three employees managing maintenance on 200 single family homes and doing just maintenance projects. The supervisor noted that the Veteran’s work production had decreased due to his low back disability and mood swings. Relevant to the Veteran’s PTSD, his supervisor indicated that the Veteran began carrying a concealed weapon and was unable to enter homes alone after his supervisor had been robbed on the property, noting that he has to “clear buildings” in the same manner he did during the war. See also November 2009, November 2009 and December 2009 statements in support of claim. The Veteran’s supervisor noted that in order to complete maintenance work the Veteran needed to be able to enter an unoccupied home alone, complete the maintenance task and move on to the next work order, but that the Veteran’s work production had noticeably fallen off and that upper management had begun to take notice. The Veteran reported that he entering empty homes was causing him to bite his nails and that he felt that his manner of entry into empty homes would eventually cause injury to someone. See November 2009 lay statement. In April 2010, a private treatment provider opined that the symptoms of the Veteran’s PTSD affected his occupational function, and the Veteran’s occupation at affected the symptoms of his PTSD. The examiner noted that the Veteran had been employed as a maintenance person for a housing complex from 2002 in a neighborhood where he felt it was necessary to obtain a permit and carry a weapon, which triggered combat-related flashbacks, and reinforced his hypervigilance, obsessive compulsive behavior, anxiousness, and paranoid behaviors. Additionally, the Veteran’s symptoms also included irritability and anger, which created conflict and trust issues with his co-workers and employers and interfered with his ability to work as a member of a team. Moreover, the examiner noted that the Veteran had difficulty concentrating related to sleep deprivation which caused him to take longer to complete tasks and increased the need for assistance, and interfered with his ability to pass skills testing requirements, which was necessary for him to apply for a maintenance position with another employer. Finally, the examiner noted that although the Veteran obtained an associate degree in computer science, he was unable to work on computers due to his lack of concentration. The examiner noted that the Veteran’s repeated reactivity to trauma cues impaired his ability to function and gain other types of employment. Additionally, in April 2010 a VA vocational counselor noted that the Veteran had an associate’s degree in computer technology and had been working for the same employer since 2007. However, the counselor also noted that the Veteran was currently employed by the same employer but as a maintenance technician, and his job consisted of maintenance, HVAC, inspection, repair, and replacement of major and minor parts for the same employer. The Veteran reported that when homes are vacant for extended periods of time the homeless and even gangs occupy the homes in the area, adding stress to his position. A March 2013 VA examination report notes that the Veteran’s PTSD symptoms include difficulty falling or staying asleep, irritability and outbursts of anger, difficulty concentrating, anxiety, depressed mood, mild memory loss, recurrent dreams, and efforts to avoid thoughts, feelings or conversations associated with the trauma as well as activities and places or people that arouse recollections of the trauma. Although the March 2013 VA examiner commented that the Veteran’s PTSD symptoms do not result in the Veteran being unable to maintain gainful employment, a rationale was not provided for this statement. At the examination, the Veteran resigning from his job related to work stressors in particular related carrying a gun to work every day and the resident of a home he worked on being found dead a few days after he completed maintenance work there. Moreover, the Board notes that the medical and lay evidence of record support a finding that the Veteran’s service-connected bilateral knee disability and low back disability also impacted his ability to work as a maintenance technician. In December 2014, a VA examiner opined that the Veteran’s lower back condition limited his ability to walk, stand, and sit for prolonged periods of time, and found that climbing, bending, stooping, and repetitive and heavy lifting were also limited by his lower back disability. The examiner also opined that the Veteran’s bilateral knee problems were exacerbated by prolonged weight bearing, bending, twisting, climbing stairs, or sitting for prolonged periods of time. See also October 2012 VA examination; April 2015 and June 2016 Social Security Administration examinations. Notwithstanding that the Veteran’s physical service-connected disabilities impact his ability to work, the Board finds that an award of TDIU on the basis of the Veteran’s service-connected PTSD is warranted from July 1, 2010. In so finding, the Board notes that although the Veteran has an associate’s degree in computer technology, his service-connected PTSD symptoms to include sleep deprivation and concentration issues prevent him from securing and maintaining employment in this field. Moreover, his PTSD symptoms also prevent him from securing and maintaining employment as a maintenance technician, his most recent and significant post-service occupation. Specifically, the Veteran’s hypervigilance, anxiety, obsessive compulsiveness, irritability, anger, and repeated reactivity to trauma cues interfere substantially with his ability to complete tasks in a timely manner and work as a member of a team. Thus, resolving all reasonable doubt in favor of the Veteran and in light of the Veteran’s education and work experience as well as the medical and lay evidence of record, the Board finds that the Veteran’s service-connected PTSD was the primary cause of his unemployability. Accordingly, entitlement to a TDIU is granted from July 1, 2010, the date that the Veteran was no longer engaged in full-time employment as a maintenance technician. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. Entitlement to Special Monthly Compensation Additionally, as indicated above, the Board notes that Veteran is presumed to be seeking the maximum benefit possible unless he expresses his satisfaction at for a lower level of benefits. AB v. Brown, 6 Vet. App. 35, 38 (1993). Relevant to the present case, entitlement to special monthly compensation (SMC) may be inferred when adjudicating a claim for an increased rating. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). (Continued on the next page)   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). As the foregoing applies to the Veteran’s service-connected disabilities for the relevant appeal period, the Board has awarded the Veteran a TDIU based solely on his service-connected PTSD from July 1, 2010, and the combined rating for the Veteran’s other service-connected disabilities (excluding PTSD) are ratable at 60 percent or higher from July 1, 2010 onwards. Accordingly, an award of SMC from July 1, 2010 onwards is warranted here. 38 U.S.C. §§ 1114(s), 5101, 5103, 5103A, 5107, 5121 (2012); 38 C.F.R. § 3.350. MARCELLA COYNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED