Citation Nr: 23027282 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 18-07 469 DATE: May 8, 2023 REMANDED Entitlement to an initial evaluation in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) from August 2, 2015, to September 20, 2018, is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) from August 2, 2015, to September 20, 2018, is remanded. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) from August 2, 2015, to September 20, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 2012 to August 2015, to include service in Southwest Asia Theater of operations during the Persian Gulf War. These matters come to the Board of Veterans' Appeals (Board) from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Board observes that this rating decision represents a readjudication of the same issues adjudicated in an April 2016 rating decision due to new and material evidence, namely the reports of the November 2016 and January 2017 VA examinations, obtained by VA within the appeal period of such. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The Veteran expressed timely disagreement with the assigned initial evaluations for these service-connected disabilities in the January 2017 rating decision, and the present appeal ensued. Accordingly, the appeal period for consideration regarding all issues, to include entitlement a TDIU as part and parcel of the appeal seeking an increased initial evaluation, is from August 2, 2015, to the present. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Further, as analysis of entitlement to a TDIU prior to September 20, 2018, must include discussion of whether a TDIU can be awarded based on any single disability in furtherance of maximizing the Veteran's potential entitlement to an award of SMC under 38 U.S.C. § 1114 (s), which has already been granted from September 20, 2018, this issue is also properly before the Board. Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Buie v. Shinseki, 24 Vet. App. 242, 248 (2010); Akles v. Derwinski, 1 Vet. App. 118 (1991). In January 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the file. In May 2021, the Board, among other actions, remanded these matters to the AOJ for additional evidentiary and procedural development. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. Pertinently, in a January 2022 rating decision, the AOJ increased the initial evaluation assigned for the Veteran's service-connected headache disability from noncompensable (zero percent) to 50 percent, effective from August 2, 2015 - the day after the Veteran's separation from active duty. As this is the highest schedular evaluation available for this service-connected disability and the matter of entitlement to an extraschedular evaluation for such has not been raised by the record or the Veteran, the AOJ's actions represent a full grant of the benefits sought regarding this issue, and thus, it is no longer in appellate status. See e.g., AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Board remanded the issues remaining on appeal again in April 2022 to ensure that VA fulfilled its duty to assist the Veteran. The Board's most recent remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appealed issues have been returned to the Board for further appellate consideration. 1. Entitlement to an initial evaluation in excess of 70 percent for service-connected PTSD from August 2, 2015, to September 20, 2018, is remanded. 2. Entitlement to a TDIU from August 2, 2015, to September 20, 2018, is remanded. 3. Entitlement to SMC under 38 U.S.C. § 1114(s) from August 2, 2015, to September 20, 2018, is remanded. As thoroughly detailed in the Board's prior two remand, an element which is integral to two of the issues on appeal and the intertwined matter of entitlement to SMC is whether the Veteran's service-connected PTSD resulted in total occupational impairment at any point during the appeal period remaining for consideration (from August 2, 2015, to September 20, 2018), as he asserted in a January 2019 submission and at the January 2021 Board hearing. At the time of the April 2022 remand, the only evidence pertinent to the critical matter outlined above was the Veteran's report to the Social Security Administration (SSA) in connection with claims filed with that Federal Agency in April 2016 and February 2017 that, aside from being a security guard from August 2015 to September 2015, he had not been employed since his August 2015 service separation. Contrary to this statement to the SSA, the Veteran had reported to a VA psychologist in March 2016 that he had secured several acting roles in commercials and a television series. The VA psychologist confirmed the Veteran's statements in this regard, noting that an Internet search yielded the Veteran's page on the Internet Movie Database that detailed credits as an actor, director, writer, and producer, in many professional projects throughout different mediums. Noting the above inconsistency regarding the Veteran's statements to two Federal Agencies in furtherance of seeking disability benefits from each, the Board remanded the Veteran's appealed issues to allow him the opportunity to reconcile these ambiguities and provide evidence of his annual income and the circumstances of his occupations from August 2, 2015, to September 20, 2018. In light of the inaction of the Veteran and his representative in response to the Board's prior request for this evidence, it was emphasized in the April 2022 remand that further the parties' continued inaction in this regard may lead to dismissal of these appealed issues due to abandonment of such under 38 C.F.R. § 3.158(a), Morris v. Derwinski, 1 Vet. App. 260, 264 (1991), and Jernigan v. Shinseki, 25 Vet. App. 220, 230 (2012). It appears that the Board's emphasis on the importance of the Veteran's response to VA's request for information prompted action; however, the evidence provided by the Veteran is not germane to the matters before the Board. Specifically, in a statement on the Veteran's VA Form 21-8940, he conveyed that his difficulty working stemmed from increased psychiatric symptoms due to being required to wear a mask in view of the global pandemic; however, this event did not commence until 18 months after the appeal period for consideration ceased. Although it may appear that the Veteran was unemployed during the appeal period for consideration (from August 2, 2015, to September 20, 2018), such is inconsistent with the Internet source cited by the Veteran's VA psychologist, reflecting that he had worked as an actor, director, writer, and producer in many professional entertainment projects throughout different mediums. Although this discrepancy could have been reconciled by submission of the Veteran's annual earnings, confirmed by the SSA, during this period, such evidence was not submitted. The Board has considered the propriety of dismissing these matters due to the non-responsive nature of the Veteran's actions despite VA's repeated requests for information necessary to readjudicate his appealed issues, as the time restriction for providing this evidence under 38 C.F.R. § 3.158(a), Morris and Jernigan has expired. However, the Veteran did take initiative to respond to VA, and the Board believes that the evidence's non-relevance to the matters before the Board may have been the result of confusion regarding the criteria necessary to substantiate his appealed issues. Accordingly, the Board will provide the Veteran another opportunity to provide VA with evidence of his annual income and the circumstances of all of his occupations from August 2, 2015, to September 20, 2018. The matters are REMANDED for the following action: 1. The AOJ must provide the Veteran and his representative the appropriate application form (VA Form 21-8940) for a TDIU appeal. The Veteran should be instructed on how to properly complete and submit the form. *The Veteran is encouraged to cooperate with VA's efforts to verify his occupational history during the appeal period. To this point, the Veteran is asked to complete the VA Form 21-8940, to include all instances of employment from August 2, 2015, to September 20, 2018. 2. The AOJ must contact the Veteran and his representative and ask that they verify his personal employment and resulting income from August 2, 2015, to September 20, 2018, to include supporting documentation in his possession, to include W-2 Forms, pay stubs, and reports of income to the Screen Actors Guild - American Federation of Television and Radio Artists (SAG - AFTRA). *The Veteran and his representative are encouraged to comply with the AOJ's efforts to determine his income during from August 2, 2015, to September 20, 2018, as his failure to do so may result in VA's inability to grant the benefits that he is seeking. 3. After the completion of above, the AOJ must determine whether the Veteran's income from August 2, 2015, to September 20, 2018, is above or below the poverty threshold as per the standards of the U.S. Department of Commerce, Bureau of the Census. 4. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the Veteran's appeal seeking an increased evaluation for service-connected PTSD, a TDIU, and SMC, to specifically include collecting and verifying information concerning his complete educational and occupational history and scheduling him for additional VA examination(s) necessary for adjudicating the issue. 5. Thereafter, the AOJ must readjudicate the issues on appeal in light of the totality of the evidence. If any benefit remains denied, the Veteran and his representative should be furnished with a copy of the readjudication and afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.