Citation Nr: 21042595 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-18 708 DATE: July 13, 2021 ORDER From July 2016, a total disability rating based on individual unemployability (a TDIU rating) due to service-connected disabilities is granted. Special monthly compensation (SMC), to include pursuant to 38 U.S.C. § 1114(s), is denied. FINDINGS OF FACT 1. The probative evidence of record including October 2015 and September 2016 VA examinations and competent and credible testimony provided by the Veteran and his spouse support a finding that from July 2016, the Veteran's diabetes mellitus and post-traumatic stress disorder (PTSD) symptoms have rendered the Veteran unable to obtain or maintain substantially gainful employment. 2. The Board has not granted a TDIU rating based solely on the manifestations of PTSD. Furthermore, the Veteran does not have an additional disability rated at 60 percent and has not presented evidence that he is permanently bedridden or housebound. CONCLUSIONS OF LAW 1. From July 2016, a schedular TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for SMC, to include pursuant to 38 U.S.C. § 1114 (s), have not been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1971 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board granted an initial rating of 70 percent, but not higher, for the Veteran's service-connected PTSD. The Veteran appealed the decision (to the extent that it failed to adjudicate the issue of entitlement to a TDIU rating due to service-connected disabilities) to the United States Court of Appeals for Veterans Claims (Veterans Court). In January 2021, a Joint Motion for Remand (JMR) was granted. A Board hearing was held on October 2019 before the undersigned; a transcript is associated with the record. 1. From July 2016, a TDIU rating is granted. Legal Criteria A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to obtain or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common cause; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Eligibility As indicated above, the Veteran appealed the March 2016 rating decision that granted service-connected PTSD with an evaluation of 30% via a July 2016 notice of disagreement (NOD). During the pendency of his increased rating claim, the Veteran testified at the Board hearing and indicated that he was unemployable due to his PTSD symptoms. Accordingly, the Board will consider a TDIU claim as part and parcel of the Veteran's July 2016 increased rating claim. See Rice v. Shinseki, 22 Vet.App. 447, 454-55 (2009). The Veteran's service-connected disabilities include PTSD, rated as 70 percent disabling; diabetes mellitus, rated as 20 percent disabling; left lower extremity peripheral neuropathy, rated as 20 percent disabling; right lower extremity peripheral neuropathy, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and hearing loss of the left ear, rated as noncompensable (zero percent disabling). Accordingly, since the Veteran had a service-connected disability rated at 70% at the time of his July 2016 TDIU claim, the Veteran met the threshold criteria for a schedular TDIU rating. Factual Background At a July 2013 VA treatment, the Veteran indicated that he worked in the grocery business for 35 years as a manager and the last two years as a meat cutter and recently became unemployed. At an October 2015 VA examination, the conducting physician opined that the Veteran's service-connected diabetes mellitus would affect the Veteran's ability to work in that he should not operate foot pedals, work on ladders or at heights, or have to walk on uneven or slippery ground. The physician also opined that the Veteran should not have to stand or walk for prolonged periods. At the March 2016 VA examination, the Veteran has reported insomnia, high anxiety, irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects, avoidant behavior, obsessive and compulsive thinking, nightmares, low concentration, hypervigilance, and suspiciousness. The Veteran reported that he worked in the grocery business for 35 years and that he had flashbacks resulting in anger at work. The conducting physician indicated that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting. The physician opined that the Veteran's PTSD causes 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 Veteran's spouse submitted an October 2019 statement during which she reported being that the Veteran is paranoid and withdrawn and refuses to be around people socially. During the October 2019 Board hearing, the Veteran testified he had retired partly due to his PTSD but that, if had not retired, he was likely going to be fired because of his attitude at work; he testified to becoming unreasonably agitated with his co-workers. The Veteran testified during the October 2019 hearing that he engages in "circle thinking," in which he feels guilty, agitated, and thinks about regrets, and these thoughts build on each other resulting in a spiral of negative thoughts. He testified that he cannot let anything go or forget anything. This happens every day, these negative thoughts and nightmares will even wake him from his sleep. The Veteran's spouse testified that he has an excessive startle response which has worsened into flailing and wailing once or twice per week. The Veteran also testified he is close with his wife but does not socialize and avoids crowds. He has one friend he talks to a couple times per week and sees a couple times per month. The Veteran testified he had a good relationship with his elder sister. His spouse testified during the October 2019 Board hearing that the Veteran has issues with memory, he cannot remember what he had for dinner the night before, but he can recall perceived wrongs from weeks ago in great detail. The Veteran further testified to having a hard time trusting people. He is also obsessive about being early for appointments, which his spouse also testified to. He further reported panic attacks, anxiety, and depression. The Veteran and his spouse both testified during the October 2019 hearing that he will not shower or shave for a week at times because he does not care. He also reported some lack of motivation and indecision. Analysis The probative evidence of record supports a finding that the Veteran's service-connected disabilities have rendered the Veteran unable to obtain or maintain employment. The October 2015 VA examiner opined that the Veteran should not operate foot pedals, work on ladders or at heights, walk on uneven or slippery ground, or stand or walk for prolonged periods due to his service-connected diabetes mellitus. Accordingly, the Board finds that the Veteran's service-connected disabilities would render him unable to do physical labor. Regarding sedentary employment, In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. The Veteran's work history mainly consists of him working at a grocery store for 35 years. The Board finds that the Veteran's service-connected PTSD symptoms render him unable engage in sedentary employment. The Board assigns probative value to the Veteran's testimony that his PTSD symptoms were likely going to get him fired because of his attitude at work. The Board also assigns probative value to the Veteran's spouse's testimony that the Veteran's PTSD symptoms causes short term memory loss and that he has an excessive startle response which has worsened into flailing and wailing once or twice per week. The Board finds that these statements are consistent with the March 2016 VA examiner's opinion that the Veteran has difficulty in adapting to stressful circumstances, including work or a worklike setting. The Board cannot assign significant probative value to the March 2016 VA examiner's opinion that the Veteran's PTSD only causes 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. Both the Veteran and his spouse provided competent and credible testimony that the Veteran's PTSD causes him to neglect his hygiene because he will not shave or shower for a week. The Veteran also provided competent and credible testimony that he engages in circular thinking and has high anxiety when dealing with other people. Based on the foregoing, the Board finds that from July 2016 entitlement to TDIU is warranted. 2. Entitlement to SMC is denied. Given the Board's grant of a TDIU rating, the Board must also consider whether the Veteran is entitled to SMC benefits at the housebound rate, pursuant to 38 U.S.C. § 1114 (s), to fulfill VA's "well established" duty to maximize the Veteran'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) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). SMC is payable at the housebound rate where, in relevant part, the Veteran has a single service-connected disability rated at 100 percent, and has additional service-connected disability or disabilities independently ratable at 60 percent or more, or by reason of such service-connected disability or disabilities is permanently housebound. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). This housebound requirement is met when the Veteran is substantially confined as a direct result of service connected disability(ies) to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the service connected disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). 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 SMC. Under subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which are rated at 100 percent disabling. However, a TDIU rating may satisfy the "rated as total" element of section 1114(s) if TDIU was awarded for a single, distinct service-connected disability. See Buie, 24 Vet. App. at 250-51. For SMC purposes, a TDIU granted solely based on the manifestations of PTSD satisfies the requirement of a "service-connected disability rated as total." Id. at 251; see also Bradley, 22 Vet. App. at 293. In this case, the Board did not grant a TDIU based solely on manifestations of the Veteran's PTSD but also because of the Veteran's service-connected diabetes mellitus rendering him unable to perform physical labor. Further, the Veteran does not have additional service-connected disability or disabilities independently ratable at 60 percent or more. Additionally, the Veteran has not asserted that he is bedridden, housebound, or in need of regular aid and attendance due to his service-connected disabilities, and the evidence does not support the same. See 38 U.S.C. § 1114. VA treatment records do not indicate that he is bedridden, or housebound, and he has not asserted the need for regular aid and attendance. Should the Veteran's circumstances change, he is free to file a claim for SMC. However, given the lack of evidence or assertion that he is currently bedridden, housebound, or in need of regular aid and attendance, entitlement to SMC must be denied. If the Veteran's situation worsens in the future, he is encouraged to file for increased disability compensation (including SMC) at that time, if he believes he meets the criteria noted above. To award additional compensation at the present time, however, would be premature. The Board is grateful for the Veteran's honorable service. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.