Citation Nr: 23039591 Decision Date: 07/19/23 Archive Date: 07/19/23 DOCKET NO. 19-34 612 DATE: July 19, 2023 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) from February 27, 2017, is granted. Entitlement to special monthly compensation (SMC) at the "s" rate is granted from February 27, 2017. FINDINGS OF FACT 1. From February 27, 2017, to August 21, 2017, the evidence shows that the Veteran's service-connected PTSD made him unable to secure or follow a substantially gainful occupation. 2. From February 27, 2017, the Veteran has a single service-connected disability rated at 100 percent disabling and additional disabilities that are independently rated at 70 percent disabling. CONCLUSIONS OF LAW 1. The criteria for TDIU have been met from February 27, 2017, to August 21, 2017. 38 C.F.R. §§ 3.340, 4.16(a). 2. The criteria for SMC at the "s" rate based on having one disability rated as 100 percent disabling and an additional disability or disabilities independently rated at least 60 percent disabling are met as of February 27, 2017. 38 U.S.C. §§ 1114(s), 1155; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1987 to February 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On February 27, 2017, the Veteran submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability. The Veteran asserted that he was prevented from securing or following a substantially gainful occupation by his service-connected PTSD. The Veteran filed subsequent Forms 21-8940 in February 2018 and December 2018. In March 2018, the Veteran filed a claim for an increased rating for his PTSD. After further development, the RO issued a rating decision in June 2018, which increased the Veteran's PTSD rating to 100 percent, effective August 22, 2017. As a result, the Veteran also received entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s), "on account of post traumatic [sic] stress disorder rated 100 percent and additional service-connected disabilities... independently ratable at 70 percent or more from 08/22/2017." Rating Decision - Codesheet. With a 100 percent rating and SMC under 38 U.S.C. § 1114(s), the Veteran's request for TDIU is moot from August 22, 2017, because he would receive no additional benefits. However, the Veteran's entitlement to TDIU before that effective date is not moot because the Veteran was only rated at 90 percent when he first requested TDIU. Accordingly, the only time period at issue for entitlement to TDIU is from February 27, 2017, to August 21, 2017. To present evidence and argument supporting his claim, the Veteran requested a hearing before the Board. A virtual hearing took place in December 2022. The Veteran did not attend, but his representative presented evidence and argument on his behalf. See Atilano v. McDonough, 12 F.4th 1375, 1381-82 (Fed. Cir. 2021) (holding that 38 U.S.C. § 7107 does not unambiguously require a Veteran to be present, in person or by electronic means, at a Board hearing for the representative to elicit sworn testimony from witnesses). Entitlement to TDIU due to service-connected PTSD from February 27, 2017, to August 21, 2017, is granted. The Veteran asserts that he should be entitled to TDIU from February 2017. After a thorough review of the claims file, the Board agrees. TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). During the relevant appeal period, the Veteran's service-connected PTSD was evaluated at 70 percent. Accordingly, the Veteran qualifies for schedular consideration of TDIU under 38 C.F.R. § 4.16(a). The only remaining issue is whether the Veteran's service-connected disability precludes him from securing or following a substantially gainful occupation. The central inquiry here is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A Veteran need not show complete unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or to non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The mere fact that a Veteran is retired, unemployed, underemployed, or has difficulty obtaining employment is not enough to warrant a grant of TDIU; the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The determination as to whether TDIU is appropriate must be based on all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Consideration should be given to the Veteran's prior education, training, and work experience. See 38 C.F.R. §§ 3.341, 4.16, 4.19. However, it is the Veteran's present level of disability that is of primary importance. Holman v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 2291 at *11 (quoting Francisco v. Brown, 7 Vet. App. 55, 58 (1994) and also citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring a veteran to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In Ray v. Wilkie, the Court noted that "substantially gainful employment" contains economic and noneconomic components. 31 Vet. App. 58, 73 (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," while the noneconomic component requires consideration of a Veteran's ability to secure or follow that type of employment. Id. In assessing the Veteran's ability to secure 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. Ray, 31 Vet. App. at 73 (2019). 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. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency, "a legal concept determining whether testimony may be heard and considered;" and credibility, "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Board is also charged with the duty to assess the probative weight given to all evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter (which includes but is not limited to equipoise), VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 778 (Fed. Cir. 2021). In February 2017, the Veteran submitted a Form 21-8940 Application for Increased Compensation Based on Unemployability. The Veteran asserted that his PTSD prevented him from securing or following a substantially gainful occupation. He gave December 1, 2016, as the date when he became too disabled to work and January 6, 2017, as the final date when he worked full-time. His employer was a private university. Reportedly, he lost 40 percent of his work time due to illness, and he left the job because of his disability. The Veteran submitted a second Form 21-8940 in February 2018. He reported that he did not try to obtain new employment after he became too disabled to work. He reported that his highest level of education was three years in college. In December 2018, the Veteran submitted a third Form 21-8940. This time his highest level of eduction was given as only two years of college. He also reported that he had the following training before he became too disabled to work: "Civil rights / Discrimination law (Title IX)" and "Law Enforcement commission (Limited)." He concluded with the following remark: "Unable to continue work due to my increasing PTSD symptoms." The Veteran shared a more detailed work history in a correspondence that accompanied his notice of disagreement in February 2018: "Following my service in the USAF [Security Forces] I started at [the university] as the Assistant Director of Campus Security, then I was promoted to the Director of Campus Security and had a very well-paying position and a job that had great meaning to me. But I started having outward signs of PTSD so in order to try and help myself I switched positions within the university and became the Lead Investigator for Title IX and accepted a substantial pay-cut." During the Veteran's long period of military service (1987-2011), he served as a "Security Forces Craftsman" for 17 years and a "Security Forces Journeyman" for six years. DD 214, April 2011. His military education included courses in Traffic Management and Accident Investigation and Military Police Investigation. The record indicates that while the Veteran served in the military, he obtained some form of college degree in the field of education. See C&P Exam, January 2017. To assess the nature and severity of his PTSD, the Veteran was afforded a VA examination in January 2017. The examiner assessed that the Veteran's psychiatric disability caused occupational and social impairment with reduced reliability. The examiner based this assessment on demonstrated or reported symptoms which include depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran explained that "his sleep is disturbed because he is in 'a heightened state of alert,' cannot relax, and has to get up to check the doors and windows of [his] house." He is distrustful of people and engages in avoidant behavior because he cannot tolerate being around other people and having to interact with them: "I don't like people," he said. "I don't trust people; everybody has an angle." During the examination, the Veteran reported "problems with irritability and anger control with verbal aggression." He also reported flashbacks and intrusive memories of his military experiences. In January 2017, the Veteran's spouse submitted correspondence wherein she raised concerns and offered criticism regarding the examination from earlier that month: "When my husband returned from yesterday's appointment I found him...very upset. The entire appointment was solely aiming [at] his PTSD (something he wasn't prepared for) and he was asked many 'deep' questions.... He was asked to use this appointment to 'open up.'" The spouse concluded: "After the appointment, he is sent home and he was upset." The Board takes these words to heart and apologizes for any indelicate treatment the Veteran may have received. In March 2018, VA received a disability benefits questionnaire (DBQ) that was completed by the Veteran's treating psychiatric provider. The provider assessed that the Veteran has total occupational and social impairment. "The [Veteran] has resigned from work.... [He] has been a first responder in all of his vocations. He needs further education in order to pursue a different career with less trauma." According to the provider, the Veteran is not able to search for and consistently be present at work because his "[h]ealth conditions...require an extended period of rest and rehabilitation." The provider assessed the following demonstrated or reported symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; impaired judgment; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; inability to maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control such as unprovoked irritability with periods of violence; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The provider also assessed the following symptoms: nightmares; flashbacks; avoiding people; negative changes in cognition, motivation, emotion, beliefs, and belonging; hyperarousal at home, in public, in an automobile; and triggers from vehicles similar to ones that posed an actual threat in the past. The provider submitted a letter attached to the March 2018 DBQ: "[The Veteran] will not return to work. [He] needs an extended break for healing physically, mentally, and spiritually, as well as in his marriage and family. He will need time to heal from his career.... His permanent disability is preventing him from gainful employment." The provider concluded: "[The Veteran] is triggered by too many stimuli to be released for any work." The Veteran was afforded a second VA examination in May 2018 to assess the severity of his PTSD. The examiner assessed that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations judgment, thinking, and/or mood. The Veteran explained that he was out of work since January 2017 because his "PTSD symptoms and distrust began interfering with his work." The examiner assessed the following demonstrated or reported symptoms: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted that, during the examination, the Veteran was a "[c]ooperative and pleasant individual who presents as extraordinarily stressed and anxious. He present[ed] as desperate and tearful intermittently. He present[ed] as tormented by hundreds of stressful and traumatic incidents." The Board has received lay testimony from the Veteran and others to support his claim for TDIU. In February 2017, his spouse explained that the Veteran "struggled through the years and over the last two years of his six years of employment, it became each week more difficult for him to function." The spouse described the symptoms that she observed: "He started to not trust anybody or anything anymore, he became a roller-coaster regarding his emotions - was quick to be angered, impatient, frustrated, doubted his judgements, misunderstood simple things, and has become depressed, somewhat irrational and suspicious of everything." In the last days of the Veteran's employment, "every trip to work became almost torturous (no sleep, irritation, explosive temper) and he was trying to make up excuses so he wouldn't have to go and he started to have panic attacks on his way to work." In March 2018, the Veteran's former supervisor reported that "[d]uring the last three months of [his] employment, [the Veteran] increasingly showed signs of stress, anxiety, seclusion, and distrust (bordering on paranoia)." The Veteran requested an accommodation to work non-traditional hours; however, he "secluded himself from other divisional team members [and] began working mostly alone." During the final months, the Veteran missed numerous workdays, but the frequency became "more intense." He often showed "physical manifestations of stress," such as "becoming flushed and agitated." In March 2018, the Veteran gave the following symptom testimony: "I am severely depressed.... I have no interests, enjoyments, social life, am constantly extremely tired, at times lethargic, etc.... I am quick to anger, easily agitated.... My PTSD triggers are everywhere now. I have been unable to seek employment because I fear dealing with people. I have no trust in anything anymore. I can't sleep [and] I can't have meaningful relationships (I've isolated myself now)[.] I now have anxiety leaving my house." In February 2018, the Veteran explained how these symptoms impacted his flailing efforts to continue working: "I could not stand the feeling of letting my employer down by constantly finding excuses why I could not be at work. I started to fear getting up in the morning, had discussions with myself to convince myself to get in the car to head to work and then started to suffer panic attacks on my way to work (I ended up at Urgent Care and the doctor informed me their finding was I suffered a panic attack) - my mind was trying everything to keep me from leaving my house. I ended up working less and less days pr week and hardly made it in for any full days of work at all anymore. I need to get back home, I needed to get away from people I cannot be around anyone or trust anyone, I am always on edge/high alert." The Veteran concluded: "I am not unemployed because I cannot find a job or am not willing to work[.] I am unemployed because I cannot handle what it asks of me." Upon review, the overwhelming weight of evidence shows that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. This includes the time period currently at issue, from February 27, 2017, to August 21, 2017. As above, the Veteran's symptoms include difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. C&P Exam, January 2017. Thus far, the Veteran's anxiety, depression, and panic attack symptoms have prevented him from either going to work at his old job or seeking to find work at a new job. He is pathologically suspicious and wary around other people. Perhaps correctly, these qualities have been described as "paranoia." The result of these and other symptoms is the Veteran's avoidant behavior and a tendency towards isolation that would be maladaptive in any workplace. As above, the Veteran's treating provider assessed the Veteran's "total occupational and social impairment" in March 2018. Based on this opinion, the RO increased the Veteran's disability rating for PTSD to 100 percent. Rating Decision, June 2018. The effective date for this award was August 22, 2017. After considering the relevant evidence, the Board finds that the record overwhelmingly shows the Veteran was living with the same level of total occupational impairment on February 27, 2017, which is only six months earlier. The evidence is nowhere close to an approximate balance, so the Veteran does not need the benefit of the doubt. See Lynch, supra. Instead, the evidence clearly establishes that the Veteran struggles with serious impairments to the following mental ability-factors per Ray v. Wilkie: memory; concentration; the ability to adapt to change; the ability to handle workplace stress; the ability to get along with coworkers; and a demonstration of reliability and productivity. 31 Vet. App. at 73 (2019). In conclusion, the Veteran has established that, from February 27, 2017, the symptoms of his service-connected PTSD prevent him from securing or following a substantially gainful occupation. Accordingly, the Board finds that his request for TDIU must be granted. Entitlement to special monthly compensation (SMC) at the "s" rate is granted from February 27, 2017. Because the Board has granted entitlement to TDIU based on a single service-connected disability from February 27, 2017, entitlement to SMC at the "s" rate is implicated from this date. A Veteran may be entitled to SMC if, in addition to having a single permanent disability rated 100 percent disabling under the VA Schedule for Rating Disabilities, the Veteran has an additional disability or disabilities independently ratable at 60 percent or more, separate, and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran's remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that combined ratings satisfy the second requirement but not the first). Due to the Board's grant of TDIU based solely on the Veteran's service-connected psychiatric disability from February 27, 2017, a 100 percent evaluation has been established based on a single service-connected disability. From February 27, 2017, to August 21, 2017, the Veteran was also service-connected for additional disabilities that were independently rated as follows: 20 percent for cervical spine degenerative disc disease post-surgery; 10 percent for right shoulder degenerative arthritis; 10 percent for lumbar spine spondylosis; 10 percent for right knee degenerative arthritis; 10 percent for left knee degenerative arthritis; 10 percent for left ankle degenerative arthritis; 10 percent for tinnitus; 10 percent for hiatal hernia; and 10 percent for right hip degenerative joint disease. Under the combined ratings table in 38 C.F.R. § 4.25, these non-psychiatric disabilities are evaluated for a combined disability rating of 70 percent. As shown, from February 27, 2017, the Veteran's TDIU award is based on a single service-connected disability, and he has additional disabilities independently rated at higher than 60 percent. Therefore, entitlement to SMC at the "s" rate is warranted from February 27, 2017. Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.D. Shoup, 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.