Citation Nr: 21026909 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-08 941 DATE: May 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to April 5, 2018, is granted. FINDING OF FACT Prior to April 5, 2018, the Veteran's service-connected disability of PTSD and adjustment disorder with secondary depressive disorder, claimed as major depression, anxiety disorder, and mood swings render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to April 5, 2018, are met. 38 U.S.C. §§ 5110(a), 5107(b) (2012); 38 C.F.R. §§ 3.400, 4.16(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from December 1965 to September 1967. Unfortunately, in February 2020 the Veteran died. See February 2020 Third Party Correspondence. In March 2020 the appellant requested substitution and based on the July 2020 notification letter, the Board infers that it was granted. See March 2020 VA 21-0847-Request for Substitution of Claimant Upon Death of Claimant; see July 2020 Notification Letter. Accordingly, the appellant is the Veteran's surviving spouse who has been substituted to pursue this appeal. Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's outstanding service. The Veteran, who received the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal, was clearly a credit to his family, and his service to his country is greatly appreciated. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) (2020). 38 U.S.C. § 7107(a)(2) (2012). 1. Entitlement to a TDIU due to service-connected disabilities prior to April 5, 2018. The Veteran was afforded a February 23, 2017 VA examination for PTSD in order to consider what other psychiatric disabilities should be service connected. See February 2017 VA Examination Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire. This examination was, however, also used to increase his rating for his PTSD. See February 2017 Rating Decision-Narrative. Then, on April 5, 2018, the Veteran filed a claim of entitlement to TDIU. See April 2018 VA Form 21-526b, Veteran Supplemental Claim. As such, based on the 2019 VA examiner's reference back to February 2017 to find unemployability due to his psychiatric disabilities, February 23, 2017 is the earliest date it is factually ascertainable that an increase in disability occurred, and a claim was received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010); see February 2019 VA Examination Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire. In June 2018 the RO denied entitlement to a TDIU, and in August 2018 the Veteran filed a Notice of Disagreement. See June 2018 Notification Letter; see August 2018 VA Form 21-0958. In September 2018 the Veteran submitted the application for TDIU based on depression, hypertension, hearing loss and diabetes. See September 2018 VA Form 21-8940. Accordingly, the Board is considering the appellate period as prior to April 5, 2018. The Board notes that the Veteran is in receipt of a 100 percent disability rating for service-connected posttraumatic stress disorder (PTSD) and adjustment disorder with secondary depressive disorder, claimed as major depression, anxiety disorder, and mood swings from April 5, 2018. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a single service-connected disability pursuant to the rating schedule, there is neither a need, nor authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period); but see Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that the Board may not dismiss as moot a claim for TDIU based upon a single disability when additional service-connected disabilities may entitle the Veteran to special monthly compensation (SMC) under 38 U.S.C. § 1114(s)). While the Board is cognizant of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008), in this case the Veteran is in receipt of a 100 percent schedular rating for PTSD and his remaining service-connected disabilities, in part, equate to independent 10 and 20 percent ratings. 38 U.S.C. § 1114(s); Bradley, 22 Vet. App. At 280; Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 C.F.R. §§ 3.350 (i), 4.29, 4.30. As such, while the Board has considered the holding in Bradley, the grant of a 100 percent schedular rating for PTSD from April 5, 2018, explains why the claim for TDIU is for the period prior to April 5, 2018, as there is no possible additional benefit for the Veteran from that point forward based upon the current record. See Buie v. Shinseki, 24 Vet. App. 242 (2011). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. 38 C.F.R. § 4.16(a). Accordingly, the Veteran is currently assigned a 70 percent disability rating for PTSD from February 23, 2017. See July 2020 Rating Decision-Codesheet. He is already in receipt of a combined rating for his service-connected disabilities, to include PTSD, of 80 percent from February 23, 2017. Id. This satisfies the criteria for consideration of TDIU on a schedular basis. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, due to his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the analysis for increased rating claims, which are based on average levels of impairment, the analysis for a TDIU claim is based upon the individual. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Veteran's service-connected disabilities are: PTSD and adjustment disorder with secondary depressive disorder, claimed as major depression, anxiety disorder, and mood swings; diabetes mellitus, type II with cataracts, both eyes and diabetic nephropathy; hypertension associated with diabetes mellitus, type II with cataracts, both eyes and diabetic nephropathy. See July 2020 Rating DecisionCodesheet. The Veteran was employed as a bus driver from 1972 to August 1999, when he last worked. He also had experience in maintenance and bridge building, and part time work in a marble factory. See July 14, 2014 and March 20, 2001 Clarksburg VA Medical Center received August 7, 2014 in CAPRI. Although there was a reference in 2001 that the Veteran reported feeling nervous around small children, the Board observes that VA psychiatric examinations, and VA treatment records, all referenced his retirement in relation to removal of a tumor, or chronic serious medical problems. See December 2014 VA Examination Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire; see October 2008, July and August 2010, and August 2013 Clarksburg VA Medical Center received August 7, 2014 in CAPRI. A February 23, 2017 VA examination indicated that the Veteran had not worked since 1999 when he last drove a school bus. See February 2017 VA Examination Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire. The Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting. Id. In February 2019, the VA examiner identified that she was assessing the Veteran's history from February 2017 to the present, and opined that the Veteran's mental health symptoms were moderate to severe and would negatively affect his ability to function appropriately and effectively in an occupational setting. See February 2019 VA Examination Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire. The Veteran reported that while he was working, prior to his retirement in 1999, he had difficulties concentrating on the job. Id. Since 1999, his mental health symptoms worsened. Id. The 2019 VA examiner opined that the Veteran would not be capable of completing work tasks due to intrusions, anxiety, difficulties concentrating, and problems with his memory. Id. A January 2019 VA examiner opined that the Veteran was unable to drive due to his diabetes related eye condition. See January 2019 VA Examination Diabetes Mellitus Disability Benefits Questionnaire. This alone, references ability to drive, which could be interpreted as referencing his long time employment as a bus driver; however, it is not enough in light of the other evidence of employability in maintenance, bridge building, or at a marble factory, for the Board to find that it causes unemployability. The Board observes that the Veteran indicated that he had two years training in small mechanics at a community college. See September 2018 VA Form 21-8940. Even so, the Board finds that the February 2019 VA examiner's opinion, in combination with the Veteran's limited educational achievement, make it unreasonable to think the Veteran is capable of obtaining and maintaining substantially gainful employment due to his service-connected PTSD and adjustment disorder with secondary depressive disorder, claimed as major depression, anxiety disorder, and mood swings. Further, the February 2019 VA examiner made clear that the opinion referenced the period from February 2017. (Continued on the next page) Resolving reasonable doubt in the Veteran's favor, the evidence shows that the Veteran is unable to obtain and maintain substantially gainful physical or sedentary employment due to his service-connected PTSD and adjustment disorder with secondary depressive disorder, claimed as major depression, anxiety disorder, and mood swings, and the assignment of TDIU benefits is warranted for the period prior to April 5, 2018. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.