Citation Nr: 21026373 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 09-37 374 DATE: April 30, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to February 19, 2015 is granted. Entitlement to a TDIU due to service-connected disabilities from February 19, 2015 is dismissed as moot. Entitlement to special monthly compensation (SMC) at the housebound rate prior to February 19, 2015 is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, prior to February 19, 2015 the probative evidence of record indicates that the Veteran’s service-connected disabilities have rendered him unable to secure and maintain substantially gainful employment. 2. As a 100 percent rating for posttraumatic stress disorder (PTSD) and entitlement to SMC have been assigned for the period from February 19, 2015, there remain no questions of law or fact to be decided regarding entitlement to a TDIU for this period. 3. Prior to February 19, 2015, the Veteran had a single service-connected disability rated as totally disabling, namely, that TDIU has been awarded based solely on the Veteran’s major depressive disorder (MDD) with PTSD, and additional service-connected disabilities independently ratable at 60 percent, specifically, his service-connected atherosclerotic cardiovascular disease, chronic lumbosacral strain, left elbow epicondylitis, bilateral plantar fasciitis, left shoulder tendonitis, bilateral tinnitus and hypertension. CONCLUSIONS OF LAW 1. The criteria for TDIU due to service-connected disabilities for the period prior to February 19, 2015 have been met. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 4.16. 2. The appeal for entitlement to a TDIU for the period from February 19, 2015 is dismissed as moot. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 4.16. 3. The criteria for SMC at the housebound rate prior to February 19, 2015 have been met. 38 U.S.C. §§ 1114, 5103, 5110; 38 C.F.R. §§ 3.350, 3.400, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to February 1978 and March 1988 to October 2007, to include combat and overseas service in Iraq. The Veteran filed his initial service connection claims for his psychiatric and heart conditions in June 2007. See June 2007 VA Form 21-526. The Veteran separated from active service on October 31, 2007. See DD Form 214. An April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for an adjustment disorder with depression with an evaluation of 10 percent, effective November 1, 2007. The April 2008 rating decision also granted service connection for atherosclerotic cardiovascular disease with an evaluation of 10 percent, effective November 1, 2007. The Veteran filed a timely Notice of Disagreement (NOD) in June 2008. Accordingly, the period on appeal dates back to November 1, 2007, the day after the Veteran separated from active service. An April 2010 rating decision recharacterized the Veteran’s psychiatric condition as MDD with PTSD and increased his initial rating to 50 percent, effective November 1, 2007. The April 2010 rating decision also increased the rating for the Veteran’s atherosclerotic cardiovascular disease to 30 percent, effective January 4, 2010. A January 2015 decision by the Board of Veterans’ Appeals (Board) remanded the claims to obtain VA medical records and new VA examinations. An August 2015 rating decision changed the Veteran’s diagnostic code for his psychiatric condition to DC 9411 from DC 9440 and granted periods of temporary total evaluations due to hospitalizations for his psychiatric condition from February 19, 2015 to April 1, 2015 and from May 14, to August 1, 2015, and assigned a 100 percent evaluation from August 1, 2015. A May 2016 Board decision issued decisions on the claims for increased ratings for hearing loss, a lumbar spine disability, left elbow disability, hypertension, and plantar fasciitis. The Board also remanded the claims for increased ratings for a heart disability and psychiatric disability as well as a claim for TDIU for additional development. A June 2018 Board decision remanded all remaining claims on appeal to obtain VA medical records. In a March 2020 decision, the Board remanded the claims for entitlement to a TDIU and SMC prior to February 19, 2015 and adjudicated the claims for increased ratings for a heart disability and psychiatric disability as well as SMC from February 19, 2015. 1. TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. 38 C.F.R. § 4.16(a). 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. In this case, for the period prior to February 19, 2015, the Veteran was service-connected for MDD with PTSD at 70 percent disabling and meets the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Id. When viewed as a whole, the evidence supports a finding that, prior to February 19, 2015, the Veteran was not capable of substantially gainful employment solely as a result of his service-connected MDD with PTSD. Social Security Administration (SSA) records reflect the Veteran’s reported work history included: working in customer service at Serco from October 2007 to August 2008; working as an instructor at BAE – US logistics from September 2008 to January 2010; working in customer service at Sam’s Clue from August 2013 to June 2014; and working in customer service at Teleperformance from August 2014 to February 2015. In a June 2007 VA psychiatric examination, the VA examiner found that the Veteran’s depressed mood and fatigue had caused irritability and low stress tolerance, which had some negative effect on his occupation and home life. Vocational rehabilitation records reflect that the Veteran attended some college at Central Texas College from 2010 to 2015. These records also reflect the Veteran worked as a call center operator from September 2014 to January 2015 for 9 dollars an hour. In a June 2012 Employment Handicap and Serious Employment Handicap Worksheet, the Veteran was found to be entitled to vocational rehabilitation benefits due to a serious employment handicap. At that time, the decision noted the Veteran had a record of or current neuropsychiatric condition and had a lack of education/training for suitable employment. In a December 2009 VA psychiatric examination, the Veteran reported that he held three jobs after his discharge from the military, briefing military soldiers, moving furniture and teaching soldiers how to operate military vehicles. At that time, he reported he had missed so much work due to appointments and was getting ready to quit his latest job. In a February 2010 VA outpatient treatment report, the Veteran stated he was no longer employed. An October 2011 VA outpatient treatment report reflects the Veteran reported he had not worked since January 2010; however, he was working on his bachelor’s degree in computer science. In a November 2012 letter, a private social worker found that the Veteran had experienced difficulty with consistent employment, active educational pursuits, and interpersonal relationships with his wife and children. The social worker concluded these were all complications from the Veteran’s multiple deployments, anxiety, depression, sleep problems and PTSD. The private social worker found that, with sustained and consistent psychotherapy, the Veteran may regain some lost skills and be able to function adequately in a work environment. A July 2015 VA psychiatric examination revealed diagnoses of chronic adjustment disorder, alcohol use disorder and major depression. The VA examiner found that this common triad of conditions needed to be treated sequentially in that the Veteran needed to be sober to adequately treat the depression and the depression needed to lift enough to treat the underlying PTSD. He concluded that all three conditions made it challenging for the Veteran to find or hold productive employment. In considering the above, the probative evidence of record demonstrates that the Veteran was not capable of substantially gainful employment or capable of only marginal employment due solely to his service-connected PTSD prior to February 19, 2015. Accordingly, the criteria for a TDIU due solely to service-connected MDD with PTSD are met. For the period from February 19, 2015, the Board observes the Veteran has been granted a 100 percent disability rating, the maximum allowable for his PTSD, and therefore, the issue of entitlement to a TDIU for this period has essentially been rendered moot. See 38 U.S.C. § 7105; see Green v West, 11 Vet. App. 472, 276 (1998) (holding that, if a 100 percent schedular rating is granted, a veteran is not also entitled to TDIU for the same period); but see Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that, while no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation). Following the reasoning of Bradley, a TDIU must still be considered even if a veteran has already been awarded a separate 100 percent evaluation for a disability to potentially make the veteran eligible for SMC. However, as the Veteran in this case is already eligible and in receipt of SMC based on the housebound rate for the period from February 19, 2015, consideration of TDIU no longer serves any useful purpose. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). As there remains no case or controversy concerning whether the Veteran is entitled to a TDIU from February 19, 2015, the appeal with respect to the claim for TDIU for the period from February 19, 2015 is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. SMC at the housebound rate prior to February 19, 2015 VA's duty to maximize benefits requires it to assess all of a claimant's service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for SMC under 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, 22 Vet. App. 280, the Court held that 38 U.S.C. § 1114 (s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a "total" rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) 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, or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A veteran with a 100 percent schedular disability rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the SMC requirements (100 percent rating plus 60 percent rating). A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a "total" (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC. See Buie at 249-50. Based on the decision above, the Veteran now meets the criteria for a TDIU prior to February 19, 2015 based on a single separate disability, specifically his MDD with PTSD, thereby qualifying for a 100 percent schedular disability rating for a single service-connected disability, and having additional combined ratings that meet the separate 60 percent disability rating requirement. Id. In this case, a TDIU has been awarded prior to February 19, 2015 based solely on the Veteran’s MDD with PTSD and there are additional service-connected disabilities independently ratable at 60 percent, specifically, his service-connected atherosclerotic cardiovascular disease, chronic lumbosacral strain, left elbow epicondylitis, bilateral plantar fasciitis, left shoulder tendonitis, bilateral tinnitus and hypertension, are ratable at a combined 60 percent. Accordingly, the criteria for SMC by reason of being housebound prior to February 19, 2015 are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, 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.