Citation Nr: 21029222 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 04-30 843 DATE: May 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), from March 9, 2012 to October 15, 2020, is granted. Entitlement to a TDIU, prior to March 9, 2012, is denied. FINDINGS OF FACT 1. From March 9, 2012 to October 15, 2020, the probative evidence of record demonstrates the Veteran was unable to obtain gainful employment due to his service-connected disabilities. 2. Prior to March 9, 2012, the Veteran's service-connected disabilities do not meet the minimum threshold for the award of a schedular TDIU, and the evidence does not show that the Veteran's service-connected disabilities rendered him unable to obtain or maintain gainful employment such that referral for extraschedular TDIU is warranted. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU, from March 9, 2012 to October 15, 2020, have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. 2. The criteria for entitlement to a TDIU, prior to March 9, 2012, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy on active duty from May 1981 to February 1989. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2005, the Board denied the Veteran's claim of entitlement to TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2007, the Court granted a Joint Motion for Remand (JMR). The Court found that the Board relied on inadequate VA examinations as basis for denying the Veteran's claim and did not properly account for the Veteran's lay accounts of observed symptomatology. Notably, the Court vacated the Board's denial of TDIU and remanded it, as the Veteran's claim to a TDIU was inextricably intertwined with the other remanded claims. Pursuant to the JMR, the Court vacated and remanded the matter to the Board. The matter was subsequently remanded for further development on several occasions and has now returned to the Board for further appellate consideration. The Veteran testified at a hearing before Veterans Law Judge (VLJ) Powell in April 2005. A transcript of the hearing has been included with the record. VLJ Powell is no longer employed by the Board. In March 2021, the Board sent the Veteran a letter informing him of the reassignment of his appeal to another VLJ, and that an optional new Board hearing was available upon request. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Additionally, the letter informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board will assume the Veteran did not want another hearing and proceed accordingly. The record is absent of the Veteran's response regarding another hearing on this matter. The Board will consider the case on the evidence of record. Entitlement to TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. A TDIU 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 a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). If the schedular criteria are not met, a TDIU may still be granted on an extraschedular basis. See 38 C.F.R. § 4.16(b). Rating boards are required to submit to the Director of Compensation and Pension Service, for extraschedular consideration, all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a); see 38 C.F.R. § 4.16(b). The Board notes that for the period since October 15, 2020, the Veteran has been rated at 100 percent for his combined disabilities. The Court recognizes 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). If a veteran is totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to rate him/her otherwise 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). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on a disability other than the disability that is rated at 100 percent. Bradley, 22 Vet. App. 280. Here, the issue of TDIU is moot from October 15, 2020 as the Veteran has been rated at 100 percent for PTSD, and the evidence does not show, and he has not claimed, that he is unable to work due to any single service-connected disability. As the Veteran is not in receipt of a 100 percent rating for the period prior to October 15, 2020, the issue of TDIU is not rendered moot for that period. Accordingly, the Board has recharacterized the issues to reflect the relevant periods under consideration. Since March 9, 2012, the Veteran meets the necessary schedular rating criteria under 38 C.F.R. § 4.16(a), as the Veteran has a 50 percent rating for his service-connected posttraumatic stress disorder (PTSD), 30 percent for left femur fracture with hip and knee involvement, 10 percent for lateral instability of the left knee associated with left femur fracture, 10 percent for a painful scar associated with left femur fracture, 10 percent for tinnitus, and a noncompensable rating for a healed scar associated with the Veteran's left femur fracture. As the Veteran meets the schedular requirements under 38 C.F.R. § 4.16(a) since March 9, 2012, the issue of entitlement to TDIU turns on whether the Veteran's service-connected disabilities impaired him from securing substantially gainful employment from March 9, 2012 until October 15, 2020. Here, the evidence of record supports such a finding. In the April 2007 JMR, the Court recognized the Board's finding that the Veteran has some impairment of the left leg that would undoubtedly prevent him from working at jobs that involve standing or walking. The Board acknowledges the previous favorable finding and shall assess whether the Veteran was able to obtain and maintain substantial employment with minimal physical exertion. The evidence of record shows the Veteran completed 14 years of education. The Veteran took college level classes including keyboard training; however, the Veteran reported he did not continue his courses due to difficultly managing stress. In May 2004, the Veteran underwent a VA psychiatric examination. The VA examiner noted the Veteran displayed mild social and occupational impairment associated with his moderate symptoms of his PTSD. The Veteran noted his last employment was production work in a factory. The Veteran reported that he worked as a truck driver from 1993 to 2001 but was unable to continue this type of work as he could not make the payments on his truck due to financial troubles. The Veteran noted he worked as a nurses' aide for two to three years. Additionally, he noted working security in a shopping mall for around a year. In the May 2005 Board hearing, the Veteran testified that he could not work due to his discomfort around groups of people and his physical limitations with his leg. The Veteran noted that he enjoyed the solitary nature of his previous work as a truck driver but stated that his leg pain from getting in and out of the truck would prevent him from continuing this type of work. The Veteran stated that he would be able to work sitting in a cubicle with no one else around. The RO provided a VA psychiatric evaluation in March 2012. The Veteran reported being unemployed through at least 2007. The VA examiner reported the Veteran's PTSD manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation. The examination noted the Veteran demonstrated mild depression and anxiety symptoms, to include social withdrawal, sleep disturbances affecting the Veteran's level of energy and motivation and irritability, which may affect social functioning, pace and performance in a work setting. The VA examiner noted that while the Veteran's thought was tangential at times, he was able to communicate his symptoms with previous treatment providers. The Veteran displayed good cognitive functioning, adequate judgment, and always displayed appropriate appearance. The VA clinical psychologist provided the opinion that the Veteran retained sufficient psychological stability and PTSD symptom control as of 2007 to secure and maintain substantially gainful employment. The RO requested an updated medical opinion regarding the Veteran's TDIU claim in November 2013. The VA psychologist stated that the March 2012 VA examination was based on the thorough review of the evidence of record, and not an in-person clinical interview, as the Veteran could not be located for the examination. Based on the evidence of record, the VA examiner shared the medical opinion presented in March 2012 but was unable to address the Veteran's employability without an in-person interview, due to the six-year span between the Veteran's last clinical contact. The VA examiner added that providing such an opinion would constitute a potential ethical violation. In August 2014, VA provided a medical opinion regarding the Veteran's employability due to his service-connected physical disabilities. The VA examiner noted the Veteran service-connected left femur fracture with hip and knee involvement would not bar the Veteran from obtaining and maintaining sedentary employment. In October 2020, the Veteran underwent a medical examination addressing the Veteran's employability. Following an in-person interview and a review of the Veteran's claims file, the VA physician stated that the Veteran's service-connected disabilities did not prevent the Veteran from obtaining sedentary work such as desk jobs. The examiner noted the Veteran was able to walk unaided upon entering the clinic and examination room. The VA examiner acknowledged the Veteran's difficulty with prolonged standing and walking, but concluded the Veteran faced no physical impediment to working in an office environment with minimal physical requirements. Additionally, in October 2020, the RO provided a psychiatric examination addressing the Veteran's PTSD symptoms and his claim of TDIU. The VA examiner reported the Veteran's PTSD symptoms had worsened since the Veteran's last VA examination. The VA psychologist noted that the Veteran had no consult or treatment for his condition, and at that time, the Veteran's PTSD symptoms were not controlled. The VA examiner noted that, if left alone, the Veteran would not complete tasks of daily living. The VA examination noted the Veteran's short temper, unpredictability, and hostility towards others would be a concern if the Veteran was to work with other people. Further, employment activities would be challenging due to the Veteran's cognitive functioning. The VA examiner cited to medical literature demonstrating that patients with PTSD, untreated over time, exhibit worsening symptoms. The VA examiner concluded that the Veteran's PTSD presented total occupational and social impairment. Resolving all reasonable doubt in favor of the Veteran, the Board finds the evidence of record demonstrates the Veteran's service-connected disabilities have barred the Veteran from securing and maintaining substantially gainful employment since March 9, 2012. See 38 C.F.R. § 3.102. The evidence of record during this period shows that the Veteran's service-connected physical disabilities prevent him from performing substantially gainful employment that was physical in nature. Regarding non-physical employment, the Board notes the November 2013 VA examination concluded that an employment opinion based on the Veteran's service-connected PTSD was not possible without an up-to-date examination of the Veteran. While the March 2012 VA examination adequately addressed the evidence of record regarding the Veteran's employability, prior to that, the most recent in-person examination took place in 2004. Accordingly, the Board assigns significant probative value to the October 2020 VA examination addressing the Veteran's worsening symptoms and the effect of the Veteran's PTSD symptoms on his employability. The October 2020 VA examiner's evaluation of the Veteran's worsening symptoms is consistent with the lay and medical evidence of record. Additionally, the October 2020 examination's assessment of the Veteran's symptoms of isolation and hostility towards other people is consistent with the Veteran's lay statement testimony stating that he would be only able to work in an environment with no one else around. Thus, the Board finds the evidence of record demonstrates the Veteran's service-connected mental and physical disabilities have barred the Veteran from securing and maintaining gainful employment since March 9, 2012. The Board finds the award of TDIU prior to March 9, 2012 is not warranted. The Veteran does not meet the schedular percentage standards for a TDIU set forth in 38 C.F.R. § 4.16(a). Further, referral for extraschedular consideration is not warranted, as the Veteran was not shown to be unable to secure and follow a substantially gainful occupation due to service-connected disabilities. The Veteran's March 2012 VA examination noted the Veteran's service-connected psychiatric disabilities did not bar the Veteran from securing or maintaining gainful employment. Additionally, the evidence of record demonstrates that the Veteran stopped working as a truck driver during this period due to financial troubles and not his service-connected mental or physical disabilities. Accordingly, the claim for entitlement to TDIU prior to March 9, 2012 must be denied. Finally, as the Veteran is, as of October 15, 2020, in receipt of a total disability rating based on his service-connected PTSD alone, the Veteran's award of TDIU is effective March 9, 2012 to October 15, 2020. See 38 C.F.R. § 4.16. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.