Citation Nr: 25003501 Decision Date: 03/12/25 Archive Date: 03/12/25 DOCKET NO. 19-20 693 DATE: March 12, 2025 ORDER 1. From February 28, 2018 to January 18, 2024, entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is denied. 2. From January 18, 2024, onwards, entitlement to a TDIU is granted. 3. From January 18, 2024, onwards, entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114 (s) is granted. FINDINGS OF FACT 1. From February 28, 2018 to January 18, 2024, the evidence demonstrates that the Veteran was gainfully employed, and her service-connected posttraumatic stress disorder (PTSD) did not preclude her from securing or following substantially gainful occupation. 2. Beginning on January 18, 2024, the evidence demonstrates that the Veteran retired and was unable to secure or follow a substantially gainful occupation due to her service-connected PTSD. 3. Beginning on January 18, 2024, the Veteran has a single disability rated at 100 percent (PTSD) and additional disabilities rated at a combined 60 percent or greater. CONCLUSIONS OF LAW 1. From February 28, 2018 to January 18, 2024, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.15, 4.16. 2. Beginning on January 18, 2024, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 3. Beginning on January 18, 2024, the criteria for special monthly compensation at the housebound rate have been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (l). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to an increased disability rating for PTSD. In May 2019, the Veteran appealed this denial, and perfected her appeal via a timely July 2019 VA Form 9: Appeal to the Board of Veterans' Appeals. In June 2020, the Board remanded the Veteran's claim for additional development. In August 2023, the Board issued a decision denying entitlement to a disability rating in excess of 30 percent for PTSD. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In May 2024, the Court issued a Joint Motion for Remand (JMR) vacating and remanding the Board's August 2023 decision. Following the JMR, the Board issued a September 2024 decision granting entitlement to an increased, 70 percent disability rating for PTSD, effective February 28, 2018. The Board also found that evidence in the file suggested that the Veteran is currently unemployed due to her service-connected PTSD. As such, the issue of entitlement to a TDIU was raised by the record and the Board's jurisdiction over this issue was proper. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The Board remanded the issue of entitlement to a TDIU so that the Veteran and her representative could complete and return VA Forms 21-4192 and 21-8940 in order to further consider the Veteran's TDIU claim. This matter now returns to the Board. There has been substantial compliance with remand directives to the extent possible, as the Veteran has failed to comply with the RO's request to complete VA forms 21-4192 and 21-8940. VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that an additional remand is not warranted and will proceed with adjudication. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist. With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor her representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Per the Board's September 2024 remand, and in order to help gather information surrounding the Veteran's employment history and level of education, VA sent a letter requesting the Veteran provide such information in October 2024. The October 2024 letter included VA Forms 21-4192 and 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Unfortunately, the Veteran did not complete and return the forms to VA. See Wood, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street). However, these completed forms are not required in order to award a TDIU if there is sufficient evidence of record for the Board to do so. TDIU Turning to the relevant evidence, the Board finds that potential entitlement to a TDIU was raised by the record in a June 2024 letter from the Veteran's husband. Records added to the file following the September 2024 remand demonstrate that the Veteran first reported that she had retired during a mental health appointment on January 18, 2024. See January 18, 2024 VA Treatment Record. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341 (a). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. During the period on appeal, the Veteran is service connected for posttraumatic stress disorder (rated as 70 percent disabling from February 28, 2018); lumbosacral strain with degenerative arthritis and intervertebral disc syndrome, (rated as 40 percent disabling from May 19, 2023); right wrist carpal tunnel syndrome, (rated as 10 percent disabling from August 4, 2000, increased to 30 percent disabling from August 24, 2021); cervical strain with degenerative arthritis and intervertebral disc syndrome (rated as 30 percent disabling from May 19, 2023), chronic sinusitis (rated as 30 percent disabling from May 19, 2023); irritable bowel syndrome with gastroesophageal reflux disease (rated as 10 percent disabling from October 27, 2004, increased to 30 percent disabling from May 19, 2023); migraines (rated as 30 percent disabling from May 19, 2023); right wrist scar (rated as 20 percent disabling from August 24, 2021); left shoulder impingement syndrome (rated as 20 percent disabling from May 19, 2023); right shoulder impingement syndrome (rated as 20 percent disabling from May 19, 2023); left upper extremity radiculopathy (rated as 20 percent disabling from May 19, 2023); tinnitus (rated as 10 percent disabling from May 19, 2023); allergic rhinitis (rated as 10 percent disabling from May 19, 2023); left lower extremity radiculopathy (rated as 10 percent disabling from May 19, 2023); right lower extremity radiculopathy (rated as 10 percent disabling from May 19, 2023); as well as pilonidal cyst residuals; left foot burn scars; right wrist scars; hemorrhoids; chronic vaginitis; and female sexual arousal disorder associated with chronic vaginitis, each rated as noncompensable. As demonstrated above, the Veteran met the statutory minimum criteria for a grant of entitlement to TDIU as of February 28, 2018. See 38 C.F.R. § 4.16 (a). Additionally, the Veteran is in receipt of a combined disability rating of 100 percent as of May 19, 2023. Generally, a TDIU may be assigned only where the schedular rating is less than total. 38 C.F.R. § 4.16 (a). However, the United States Court of Appeals for Veterans Claims (Court) has held that VA has a "well-established" duty to maximize a claimant'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). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 at the (s) rate. See Bradley, 22 Vet. App. at 294 (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). Of relevance here, the Court has specifically held that there could be a situation where a veteran has a schedular total rating for a single service-connected disability but could establish entitlement to a TDIU rating for another service-connected disability or disabilities in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more. See 38 U.S.C. § 1114 (s); Bradley, 22 Vet. App. at 293; Buie, 24 Vet. App. at 248. In other words, a TDIU claim will not automatically be mooted; rather, the Board must consider the specific facts of each case to determine if a veteran's benefits can be maximized. Therefore, the Board finds that from February 28, 2018 (the effective date of the grant of an increased, 70 percent disability rating for PTSD) to January 28, 2024 (the date it is factually ascertainable that the Veteran was no longer employed), entitlement to a TDIU is not warranted because the Veteran was substantially and gainfully employed. However, the Board further finds that from January 18, 2024, the Veteran was no longer employed, therefore, entitlement to a TDIU and special monthly compensation is warranted. 1. Entitlement to a TDIU due to a service-connected disability from February 28, 2018 to January 18, 2024 is denied. As demonstrated above, the Veteran met the statutory minimum criteria for a grant of TDIU as of February 28, 2018. See 38 C.F.R. § 4.16 (a). However, the threshold matter of employment operates as a statutory bar to a grant of TDIU. Here, VA medical records show that while the Veteran met the met the statutory minimum criteria for a grant of TDIU as of February 28, 2018, she retained full time, substantially gainful employment as a federal employee until January 18, 2024. See January 18, 2024 VA Treatment Record. There is no evidence of record prior to January 18, 2024 showing that the Veteran was no longer employed. The Veteran failed to complete the requested VA Form 21-8940 so there is no evidence that her employment terminated prior to that date or was marginal. While the Board acknowledges that the Veteran's service-connected PTSD symptoms certainly caused some level of functional impairment, there is no evidence to support a finding that this functional impairment otherwise rendered the Veteran unable to secure or follow a substantially gainful occupation prior to January 18, 2024. Accordingly, as the threshold matter of employment operates as a bar to a grant of a TDIU, entitlement to a TDIU from February 28, 2018 to January 18, 2024 must be denied. 38 U.S.C. § 5107 (b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to a TDIU for the period beginning on January 18, 2024 is granted. 3. Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114 (s) beginning on January 18, 2024, is granted. As demonstrated above, the Veteran retained substantially gainful employment until her retirement in January 2024. However, the evidence prior to her retirement, detailed below, demonstrates that the Veteran had significant difficulty maintaining substantially gainful employment due to her PTSD symptoms, leading to her subsequent retirement. As such, the Board finds that entitlement to a TDIU from January 18, 2024 (the date it is first factually ascertainable that the Veteran was no longer employed), is warranted. Turning to the evidence of record, in February 2018, the Veteran reported that she was having difficulty coping with anxiety, which was exacerbated by stress from her job. The Veteran rated her anxiety and depression as an 8 out of 10 in severity within the past two weeks. During this appointment, it was noted that the Veteran was employed full time. See February 28, 2018 VA Treatment Record. In a March 2018 evaluation (submitted in June 2024), the Veteran reported that she was currently working full time as a program analyst and has held the same job for one year. The examiner noted that the Veteran has a bachelor's degree and has marketable job skills as an analyst. However, the Veteran reported that she had been fired or suspended from a job once due to an error. Veteran described her current job as "very stressful," and reported that she feels she was not properly trained and has struggled to learn processes. The Veteran stated she has felt pressured to produce results and has experienced panic attacks. She stated that she is easily frustrated when she does not know the answers and gets confused. See March 2018 PTSD Examination. In July 2018, the Veteran was counselled for at-work errors, to include failure to follow supervisory instructions, and inattention to duty/performance. See July 2018 Occupational Counseling Notice. In October 2018, the Veteran was afforded a VA examination. During this examination, the Veteran reported that she was currently employed as a program analyst and had been employed in this capacity for almost two years. However, the Veteran reported that her PTSD symptoms were not being accommodated by her current supervisors. The Veteran reported that she was written up twice for performance concerns. In January 2019, the Veteran's VA provider prepared a letter for the Veteran's employer, detailing the Veteran's diagnosis and her need for reasonable accommodations in the workplace. In this letter, the provider detailed that the Veteran has a diagnosis of "major depressive disorder and unspecified trauma related disorder [type of PTSD]." The Veteran's provider opined that this diagnosis results in impaired concentration, psychomotor slowing, fatigue limiting work efficiency, and a need to have things repeated or trained in different way. See January 17, 2019 VA Treatment Record. In October 2019, the Veteran was afforded a medical examination for her PTSD. During this examination, the Veteran reported that she was having a hard time concentrating at work and problem solving. The Veteran stated that during presentations, her "mind goes blank, then when things come out, [she doesn't] make sense." The Veteran reported that she just got off suspension the day before. She said she had been suspended twice. The first suspension was for three days, and this past suspension was ten days. The Veteran stated that her current problems at work include anxiety, depression, lack of concentration, lack of focus, and paranoia about losing her job. See October 29, 2019 VA Treatment Record. In November 2019, the Veteran's provider drafted an additional letter advising the Veteran's employer that due to her mental health diagnoses, the Veteran should be allowed to work as a teleworker from home up to 3 days a week so long as it does not affect her job duties. See November 26, 2019 VA Treatment Record. However, these accommodations were not followed. See February 19, 2020 VA Treatment Record. In July 2022, the Veteran reported increased difficulty with her job. The Veteran stated that she has been receiving many complaints at her job regarding not paying attention to detail. The Veteran stated that she makes multiple mistakes, her mind is foggy, and she has anxiety and paranoia regarding potentially losing her job. See July 14, 2022 VA Treatment Record. In April 2023, the Veteran stated she was considering retiring at the end of the year due to how her PTSD symptoms were affecting her at work. See April 13, 2023 VA Treatment Record. In October 2023, the Veteran reported she was working from home. See October 12, 2023 VA Treatment Record. In January 2024, the Veteran reported that she was retired. See January 18, 2024 VA Treatment Record. There is no evidence that the Veteran returned to any form of employment following her retirement in January 2024. In light of the above evidence and resolving reasonable doubt in the Veteran's favor, the Board finds that from January 18, 2024, a TDIU is warranted. During the period on appeal, the Veteran's service-connected PTSD manifested in symptoms that significantly interfered with her ability to follow a substantially gainful occupation consistent with her education, skills, training, and work history, leading to her subsequent retirement. Specifically, the Veteran's educational and employment history makes the Veteran most qualified for office work in analyst positions where she would be required to produce deliverables on a strict timetable, handle multiple responsibilities at once, and pay close attention to detail. However, the Veteran's PTSD symptoms of panic, anxiety, depression, paranoia, difficulty focusing and concentrating, psychomotor slowing, and fatigue would continue to substantially impact the Veteran's ability to form and maintain successful working relationships and deal with stressful work circumstances, which would severely impair her work performance. The evidence above demonstrates that the Veteran consistently struggled with suspensions and counseling due to poor performance as a result of her PTSD symptoms. The evidence above further demonstrates that transitioning to a remote position did not alleviate these symptoms, and the Veteran was subsequently forced to retire. Accordingly, the Board finds that from January 18, 2024, onwards, a TDIU is granted on the basis of a single disability (PTSD). The Veteran's service-connected PTSD prevents her from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Additionally, the Veteran meets the requirement for special monthly compensation on the statutory housebound basis under 38 U.S.C. § 1114 (s), and 38 C.F.R. § 3.350 (i) from January 18, 2024, because she has one disability now evaluated at 100 percent (PTSD) and additional disabilities ratable at a combined 60 percent or more. Therefore, from January 18, 2024, entitlement to special monthly compensation on the statutory housebound basis is also granted. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Breslin, Jenna D. 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.