Citation Nr: 21029993 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-09 173 DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 12, 2017 is granted. FINDINGS OF FACT 1. The Veteran's service-connected disability has precluded him from obtaining and sustaining substantially gainful employment prior to June 12, 2017. 2. Since June 12, 2017, the Veteran has been in receipt of a 100 percent schedular rating for unspecified depressive disorder; as such, there is no controversy with respect to the question of the Veteran's entitlement to TDIU from that date forward. CONCLUSIONS OF LAW 1. The criteria for a TDIU prior to June 12, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.16. 2. Beginning June 12, 2017, the criteria for entitlement to a TDIU is moot considering the award of total schedular disability evaluation for unspecified depressive disorder. 38 U.S.C. § 7105; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1987 to March 1992, with service in Saudi Arabia. He is the recipient of a Southwest Asia Service Medal and 2 Bronze Stars. He currently has a 100 percent schedular disability rating for unspecified depressive disorder. In May 2019, the Board issued a decision denying the claims of entitlement to service connection for an acquired psychiatric condition, to include PTSD and depressive disorder and entitlement to a TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In the Joint Motion for Partial Remand (JMPR), the parties requested that the May 2019 Board decision pertaining to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and a depressive order and entitlement to a TDIU be vacated. The parties agreed that the Board erred by finding VA's duty to assist was satisfied by a March 2014 VA medical examination. The negative nexus opinion provided was inadequate, as it was not supported by a well-reasoned medical rationale. Regarding entitlement to TDIU, the parties agreed that the matter was inextricably intertwined with the remanded matter and thus, remanded as well. In November 2020, the Board remanded entitlement to service connection for an acquired psychiatric condition, to include PTSD and entitlement to TDIU. In a February 2021 rating decision, the Veteran was awarded service connection for an unspecified bipolar disorder with an evaluation of 70 percent, effective June 24, 2013 and an evaluation of 100 percent, effective June 12, 2017. The rating decision also established basic eligibility to Dependents' Educational Assistance, effective June 12, 2017. A Supplemental Statement of the Case was issued in February 2021 denying entitlement to TDIU. Entitlement to TDIU prior to June 12, 2017 The Veteran submitted an informal claim for service connection for mental conditions on June 24, 2013. In this case, the TDIU claim has been raised by the record. Pursuant to the holding in Rice, a claim for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Additionally, the Veteran did not file his application for TDIU until March 2021. In his application, he asserted that the TDIU claim was raised prior to the Veteran's formal application as part-and-parcel of his informal claim. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. In a recent precedential decision issued by the United States Court of Appeals for Veterans Claims, guidance was offered in defining "unable to secure and follow a substantially gainful occupation." In Ray v. Wilkie, CAVC found that 38 C.F.R. § 4.16(b) has two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. In determining whether the Veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. In determining whether the Veteran has the mental ability to perform the activities required by the occupation at issue, factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Id. at 73. For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran is service connected for unspecified depressive disorder rated at 70 percent effective June 24, 2013 and 100 percent effective June 12, 2017 and residuals of right hand injury with fracture, fifth metacarpal, and degenerative arthritic changes of multiple metacarpal interphalangeal joints at 0 percent effective March 10, 1992 and 10 percent effective January 28, 2004. The Veteran's combined disability rating for the relevant appeal period June 24, 2013 to June 12, 2017 was 70 percent. Therefore, from June 24, 2013, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU based on his service-connected disabilities. As the Veteran has been in receipt of a total 100 percent combined evaluation for the period after June 12, 2017, analysis will follow for the period from June 24, 2013 (the date of the claim) until June 12, 2017. Turning to the question of whether the Veteran was unable to obtain and maintain any form of gainful employment consistent with his education and occupational experience prior to June 12, 2017, the Board notes that the record shows the Veteran has not worked since 1992. See VA Form 21-8940, March 2021. In his TDIU application, the Veteran reported he left his last employment in 1992 as a security guard as a result of his disability. His highest level of education was graduating from high school. The record shows his longest employment was five years with the Army. A General Medical Pension Disability Benefits Questionnaire was completed in February 2014. The examiner noted diagnoses of lumbosacral degenerative disc disease with chronic back pain and PTSD. The examiner noted the Veteran was not currently employed and his current diagnoses would not prevent him from substantially gainful occupation. During his VA Initial PTSD examination in March 2014, he was diagnosed with unspecified bipolar disorder and a report of chronic low back pain was noted. The examiner concluded he did not meet the diagnostic criteria for PTSD under DSM-5 criteria. The examiner opined that his mental diagnosis would cause 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. It was noted he lived alone in an apartment for people with disabilities, and his mother and siblings check in on him. His mother does his laundry, pays his bills, and takes him grocery shopping. He noted he could manage these things if he had to eventually. It was noted after his discharge in 1993 he worked for approximately 9 months as a security guard. He quit because he was working ten hours a day for his own shift, then he would be asked to cover additional shifts when other guards would not come in. The Veteran reported going on Social Security Disability around 1998 for arthritis and back pain. He reported he hurt his back in the Gulf War and that limited his work after that. No work, school, or volunteer work since that time was noted, which he attributed to difficulties with "mental stability." He reported he struggles to work with others and often gets frustrated and irritable, however, he denied calling off work due to his mental health issues. The examiner noted the Veteran emphasized how much pain he experiences daily and how frustrated he feels about his pain. For rating purposes, his symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short- and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. It is worth noting regarding his claim for NSC pension, the examiner found that there was inadequate evidence for total functional impairment from mental health issues, given distorted self-reported symptoms, true levels of functional impairment were unknown and would require speculation to make any definitive conclusions. He reported going from working 10-20 hour shifts at a full-time job without missed work, to being on disability and never working again. Psychiatric treatment notes closest to that time period reflect substance dependence as a key component to impairments at that time. Known current mental health conditions cannot explain the extent of his current functional disability that he describes, particularly overreliance on his mother for routine household chores and other tasks. In June 2017, a Residual Functional Capacity Evaluation (Re: Ability to Do Work-Related Activities (Mental)) assessment reported that due to his mental problems, the Veteran would, three times or more per month, miss work, have to leave work early, and be unable to stay focused to complete simple repetitive tasks. It was also reported that if the Veteran was subjected to the normal pressures and constructive criticisms of a job, he would more than once per month respond in an angry manner, but would not actually become violent. The June 2017 PTSD Disability Benefits Questionnaire diagnosed the Veteran with PTSD and unspecified depressive disorder. The examiner opined the Veteran's diagnoses would cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. For employment history, the Veteran reported his longest job was with the Army for five years. His last job was security, but was unsure when he left the job. He reported receiving Social Security Disability Benefits in 1994 for his physical difficulties and depression. The Veteran reported to be living with his significant other, who he has been in a relationship with for twenty years. She was reported to handle his finances. He reported being socially isolated and withdrawn. For rating purposes, his symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, persistent delusions or hallucinations, persistent danger of hurting self or others, neglect of personal appearance and hygiene, and intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene. In addition, the June 2017 assessment included an opinion that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to PTSD and depressive disorder. The examiner found that his PTSD and unspecified depressive disorder preclude him from maintaining substantially gainful employment. To support this, research was referenced detailing the connection between PTSD and unemployment, including social struggles Veteran's diagnosed with PTSD and chronic unemployment and/or underemployment face, such as inadequate transportation, poor housing options, family care burdens, and other social responsibilities that serve as barriers to gainful employment. Furthermore, research was referenced that indicated a PTSD diagnosis leads to occupational dysfunction and poor work-related quality of life. See June 2017 Assessment, Page 1. The assessment included information that the Veteran required assistance performing daily living tasks, including food shopping, meal preparation, maintaining household chores, and managing the finances. In addition, his significant other has to constantly remind him to shower, as he only showers approximately three times a week, stating he does not feel safe in the shower. The examiner noted that his PTSD and depressive disorder are emotionally debilitating, in addition to causing occupational and social impairment. The examiner noted the severity of his symptoms date back to his original claim in June 2013 that included the Veteran reporting suicidal and homicidal ideation, with no intent or plan. Additionally, he reported auditory and visual hallucinations and reported he suffered from chronic sleep impairment, including insomnia, broken sleep, and nightmares. He reported difficulty concentrating, irritability, difficulty establishing and maintaining relationships and difficulty in adapting to stressful circumstances, including work. After a careful review of the evidence, the most probative evidence of record indicates that the Veteran's symptoms of his service connection unspecified depressive disorder precluded him from securing and following substantially gainful employment from June 24, 2013 to June 12, 2017. This is reflected in the evidence outlined above. The record shows the Veteran last worked in 1992. His psychiatric symptoms would significantly interfere with any employment be it sedentary or physical. The June 2017 examiner's opinion is probative in the assessment of the Veteran's limitations due to his service-connected disability. In regard to his occupational functioning, to include difficulty in adapting to stressful circumstances, including work or a worklike setting, the Board notes that the Veteran has not worked at any point pertinent to the appeal period. Based on the very limited information on his work history, the realistic chance of him obtaining and maintaining substantial gainful employment is low. A Social Security Administration Disability Determination dated January 1995 noted a primary diagnosis of "affective disorders," with a disability beginning date of December 1, 1994. Although the SSA determination is not dispositive here, the Board has considered its findings in reaching this decision. The Board has taken the Veteran's education, training, vocational history, and functional capacity into account in determining that neither labor-intensive nor sedentary jobs would be appropriate for him due to his service-connected disability. The Board concludes the criteria for an award of TDIU benefits prior to June 12, 2017 have been met. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating"). Finally, for the period after June 12, 2017, the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). Although no additional disability compensation may be paid when a total schedular disability is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation ("SMC"). The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Here, to also award a separate TDIU rating in addition to the schedular 100 percent rating for the period after June 12, 2017 based on the Veteran's 100 percent rating for an unspecified depressive disorder would result in duplicate counting of the disability. Id. Therefore, the matter of entitlement to a TDIU rating after June 12, 2017 is rendered moot. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.