Citation Nr: 21029009 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-43 684 DATE: May 12, 2021 ORDER For the period from July 15, 2014 to December 13, 2018, a total disability rating based on individual unemployability (TDIU) is granted. For the period from July 15, 2014 to October 28, 2019, special monthly compensation (SMC) based on statutory housebound status under 38 U.S.C. § 1114(s) is granted. FINDINGS OF FACT 1. During the period from July 15, 2014 to December 13, 2018, the Veteran's service connected PTSD rendered him unable to obtain and maintain substantially gainful employment. 2. In addition to TDIU based on his PTSD alone, effective July 15, 2014, the Veteran has additional service-connected disabilities independently ratable as at least 60 percent disabling. CONCLUSIONS OF LAW 1. For the period from July 15, 2014 to December 13, 2018, the criteria to establish TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25. 2. For the period from July 15, 2014 to October 28, 2019, the criteria to establish SMC at the statutory housebound rate have been met. 38 U.S.C. §§ 1114(s), 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350. REMANDED The issue of entitlement to TDIU prior to July 15, 2014 is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1989 to January 1991. In a November 2018 decision, the Board determined that the issue of entitlement to TDIU had been raised during the pendency of a claim of entitlement to a higher initial evaluation for posttraumatic stress disorder (PTSD), and took jurisdiction of that issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue was remanded for development, and because it was inextricably intertwined with the remanded issue of entitlement to a higher evaluation for PTSD. In January 2021, the Board denied evaluations higher than 30 percent prior to October 29, 2019 and 70 percent from that date for PTSD. The issue of entitlement to TDIU was remanded. The AOJ continued denial of TDIU in a February 2021 supplemental statement of the case (SSOC). In response to the February 2021 SSOC, the Veteran's attorney submitted correspondence in March 2021 that requested that the appeal not be recertified to the Board. He noted that TDIU was denied because the Veteran did not return VA Form 21-8940, but pointed out that the form would be submitted as soon as the Veteran completed it. The Veteran's VA Form 21-8940 was received in March 2021, and the AOJ subsequently issued a March 2021 rating decision granting TDIU, effective December 14, 2018. This rating decision also awarded SMC at the statutory housebound rate, effective October 29, 2019. The Board notes that the issue of entitlement to TDIU arose from the Veteran's claim of entitlement to an increased rating for PTSD, received September 18, 2013. The issue of entitlement to TDIU prior to December 14, 2018 was returned to the Board for consideration. Notably, the attorney has not requested that the Board refrain from adjudicating this issue. Moreover, as the Board concludes herein that TDIU is warranted from July 15, 2014 to December 13, 2018, and that SMC at the statutory housebound rate is warranted from July 15, 2014 to October 28, 2019, and is remanding the issue of entitlement to TDIU prior to July 15, 2014, there is no prejudice to the Veteran in the Board's adjudication of the Veteran's claims. TDIU As an initial matter, the Board observes that from July 15, 2014 to October 28, 2019, the Veteran was in receipt of service connection for an acquired psychiatric disorder, evaluated as 30 percent disabling; obstructive sleep apnea (OSA), evaluated as 50 percent disabling, and tinnitus, evaluated as 10 percent disabling. His combined evaluation for compensation during this period was 70 percent. From October 29, 2019, the evaluation for the Veteran's psychiatric disorder was evaluated as 70 percent disabling, and his combined evaluation for compensation was 90 percent. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the period from July 15, 2014 (the effective date for the grant of service connection for OSA) to December 13, 2018, the Veteran met the objective criteria under 38 C.F.R. § 4.16 for consideration of TDIU. Moreover, the Board concludes that TDIU is warranted for the period from July 15, 2014 to December 13, 2018. In this regard, the record contains evidence discussing the impact of the Veteran's service-connected disabilities on his occupational functioning. In August 2015, H.H.G., Ph.D. indicated that the stress from a competitive work environment precluded the Veteran's ability to engage in gainful activity. She described the Veteran's psychiatric impairment as severe, and concluded that the Veteran's PTSD symptoms prevented him from maintaining substantially gainful employment. In weighing the lay and medical evidence of record, the Board finds that the evidence is in relative balance as to whether the Veteran was rendered unable to obtain and maintain a substantially gainful occupation as the result of his PTSD for the period from July 15, 2014 to December 13, 2018. As such, entitlement to TDIU is warranted. SMC VA has a 'well-established' duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC pursuant to 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008). SMC will be payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has 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). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The United States Court of Appeals for Veterans Claims (Court) has held that although TDIU may satisfy the "rated as total" element of section 1114(s), TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). As noted, the March 2021 rating decision awarded SMC at the statutory housebound rate, effective October 29, 2019. Considering the Board's award of TDIU from July 15, 2014, the question of entitlement to SMC from that date must also be addressed. In this case, Dr. G. stated in August 2015 that the Veteran could not sustain the stress from a competitive work environment and could not be expected to engage in gainful activity secondary to his severe level of impairment. Thus, the record establishes that the Veteran's PTSD alone rendered him unemployable, and the award of TDIU based on the Veteran's PTSD alone satisfies the "rated as total" element of subsection 1114(s). For the period beginning July 15, 2014, the Veteran had disabilities in addition to his PTSD whose combined evaluation was 60 percent (OSA evaluated as 50 percent disabling and tinnitus evaluated as 10 percent disabling). Accordingly, from July 15, 2014, the award of SMC at the statutory housebound rate is warranted. REASONS FOR REMAND For the period prior to July 15, 2014, the Veteran's combined evaluation for compensation was 10 percent (for tinnitus) from April 22, 2005; and 40 percent from November 10, 2005, with a 30 percent evaluation for an acquired psychiatric disorder and a 10 percent evaluation for tinnitus. Thus, he did not meet the schedular requirements for TDIU for this period. When the percentage requirements are not met, entitlement to TDIU may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign extra-schedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, where there is a question as to whether the Veteran is unable to secure or follow a substantially gainful occupation the issue requires referral to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b). Because there is evidence suggesting that the Veteran's service-connected PTSD interfered with his occupational functioning prior to July 15, 2014, the Board concludes that this case should be referred for extraschedular consideration. The matter is REMANDED for the following action: 1. Refer the issue of entitlement to TDIU prior to July 15, 2014 to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). 2. Then, readjudicate the Veteran's claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.