Citation Nr: A25033859 Decision Date: 04/11/25 Archive Date: 04/11/25 DOCKET NO. 250318-519034 DATE: April 11, 2025 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to April 4, 2018, is denied. An effective date prior to February 14, 2019, for the award of special monthly compensation (SMC) based on housebound status is denied. FINDINGS OF FACT 1. Prior to April 4, 2018, the Veteran's service-connected disabilities did not render him unable to obtain and maintain gainful employment consistent with his education, training, and work experience. 2. Prior to February 14, 2019, the Veteran did not have a single service-connected disability rated as totally disabling with additional service-connected disabilities independently rated at 60 percent or more. CONCLUSIONS OF LAW 1. Prior to April 4, 2018, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. 2. The criteria for an effective date prior to February 14, 2019, for the award of SMC based on housebound status are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.2500. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1968 to February 1970. These matters come before the Board of Veterans' Appeals (Board) from an October 2024 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office. In March 2025, the Veteran submitted a timely Decision Review Request: Board Appeal, VA Form 10182. The Veteran elected the Direct Review docket. Thus, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal (i.e., October 7, 2024). 38 C.F.R. § 20.301. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300. If the Veteran wishes VA to consider any evidence that falls into any period that the Board may not consider in this case, the Veteran may file a Supplemental Claim within one year of the Board's decision and submit or identify this evidence for review. 38 C.F.R. § 3.2501. Specific instructions for filing a Supplemental Claim are included with this decision. The Board acknowledges this decision is being issued prior to the expiration of the period in which the Veteran may elect to switch dockets pursuant to the holding in Williams v. McDonough, 37 Vet. App. 305 (2024). However, the Veteran's representative expressly requested that the Board issue its decision as soon as possible, which the Board construes as an implied waiver of the right to switch dockets. The Board will therefore promulgate this decision without further delay as requested. TDIU The Veteran contends he is entitled to an earlier effective date for the award of a TDIU-i.e., that he is entitled to a TDIU prior to April 4, 2018. The Veteran has advanced two alternate theories of entitlement: first, that his service-connected posttraumatic stress disorder (PTSD) and tinnitus were incurred in action and are therefore one disability for purposes of awarding a schedular TDIU and second, that he is entitled to a TDIU on an extraschedular basis. For the reasons that follow, the Board finds that the Veteran is not entitled to a TDIU, either on a schedular or extraschedular basis, prior to April 4, 2018. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. The noneconomic 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. For a claimant to prevail on a claim for a TDIU rating, the record must reflect some factor that takes the case outside the norm. 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 Van Hoose v. Brown, 4 Vet. App. 361 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If the Veteran does not meet the schedular requirements for a TDIU, the Veteran may be awarded an extraschedular TDIU after additional procedural requirements, including referral to the Director, Compensation Services. 38 C.F.R. § 4.16(b). In this case, as noted above the Veteran's claim was previously referred to the Director, Compensation Services, who denied entitlement to a TDIU prior to April 4, 2018, on an extraschedular basis in an October 2024 advisory opinion. Accordingly, the procedural requirements of 38 C.F.R. § 4.16(b) have been fulfilled, and the Board may conduct, without further delay, a de novo review of fthe Veteran's claim for an extraschedular TDIU. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision regarding a TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation and Pension Service is neither evidence nor a policy decision but is simply a decision or adjudication that is adopted by the AOJ and reviewed de novo by the Board); Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (the Board reviews the Director, Compensation Service's extraschedular decision de novo and may assign an extraschedular rating when appropriate). The Board acknowledges the Veteran's argument that he is entitled to a TDIU on a schedular basis because his disabilities should be treated as a single disability pursuant to 38 C.F.R. § 4.16(a)(4). In this regard, however, whether the Veteran is awarded a TDIU on a schedular or extraschedular basis is not a material issue; after all, either way, the benefit awarded is the same, as is the central issue to be decided in this appeal-i.e., whether, for the period on appeal, the Veteran's service-connected disabilities rendered him unable to obtain and maintain gainful employment consistent with his education, training, and work experience. The Board therefore need not address this contention further. For the period on appeal before the Board, the Veteran is service connected for the following disabilities: PTSD, evaluated at 50 percent from September 22, 2017; tinnitus, evaluated at 10 percent from September 22, 2017; and bilateral hearing loss, evaluated as noncompensable from September 22, 2017. See, e.g., October 2024 Rating Decision. Turning to the evidence of record, VA Treatment records from 2017 indicate the Veteran had long standing problems with anger, irritability, low motivation, anhedonia, and depressed mood; the Veteran also reported a history of animal abuse and stated that he avoids crowds and people, preferring to be alone. See, e.g., VA Treatment Records dated July 27, 2017 and October 3, 2017. The Veteran attended a single VA PTSD examination during the period on appeal. In that November 2017 examination, the examiner noted symptoms of anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner described the Veteran as appropriately groomed, pleasant, cordial, and cooperative, though mildly anxious. The Veteran's speech was clear and fluent, his thoughts were logical and goal-directed, and his eye contact was appropriate. There was no evidence of cognitive impairment, psychotic thought process, or delusional content. Occupationally, the Veteran reported that he had a good work ethic, though he preferred to work alone. He did not report any periods of sustained unemployment prior to his retirement; he was never fired from a position; and he denied any history of extended absences or impaired work efficiency due to his mental health symptoms. ? The Veteran also attended a VA hearing loss and tinnitus examination in November 2017. In that examination, the Veteran reported no functional impairment as a result of his tinnitus, but did indicate that his hearing loss causes difficulties hearing in the presence of background noise and at a distance; he also reported needing an increased volume level on the television. After the period on appeal, the Veteran's psychiatric symptomatology appears to have increased, with an April 4, 2018 VA treatment record stating the Veteran's measures of anxiety, depression, and inability to function show the Veteran was "severely symptomatic." That noted increase in symptomatology is the same day as the current effective date for the Veteran's TDIU. See also November 2018 VA PTSD Examination (noting the Veteran reported an increase in nightmares, anger, irritability, and anxiety); VA Treatment Record dated November 5, 2018 (noting a report of suicidal ideation); VA Treatment Record dated February 19, 2019 (noting increasing struggles with depression, anxiety, and irritability); but see VA Treatment Record dated July 9, 2020 (noting the Veteran was "working in construction which suggests an increase in mood/motivation"). The Veteran also submitted a March 2023 private vocational assessment, in which A.J., a certified rehabilitation counselor, opined that the Veteran has been precluded from substantially gainful employment since September 2017 based on a combination of his PTSD, OSA, hearing loss, tinnitus, and hypertension. However, the medical evidence reviewed in that opinion begins in October 2018, prior to the period on appeal in this matter; the portion of the document entitled "vocational opinion" likewise cites evidence no earlier than October 2018. It is therefore unclear to the Board how the counselor arrived at the September 2017 date other than the fact that it is the date the Veteran was first service connected for a disability. To the extent the counselor does not provide any factual basis for an effective date prior to October 2018, the Board finds this opinion inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). ? However, the vocational assessment does provide additional details about the Veteran's educational and occupational background. The Veteran obtained his GED after leaving school in tenth grade. Following military service, the Veteran attended one year of business classes in the evening while working full-time, but he was unable to complete a degree because the workload was too difficult to balance with his employment. He reported working in the following occupations: gas station attendant, firearm assembler, dairy farmer, and heavy equipment operator. Elsewhere the Veteran also reported working as a carpenter and auto mechanic. See November 2017 VA PTSD Examination. After conducting a thorough review of the record, the Board finds the current effective date for the award of a TDIU is appropriately assigned. In other words, prior to April 4, 2018 (when the Veteran's psychiatric symptomatology showed a marked increase), the Veteran's service-connected disabilities did not render him unable to obtain and maintain gainful employment consistent with his education, training, and work experience. In this regard, the Board observes the Veteran's psychiatric symptomatology as it existed prior to April 4, 2018 consisted primarily of anxiety, chronic sleep impairment, and disturbances of motivation and mood. This array of symptoms does not preclude obtaining or maintaining gainful employment, a fact to which many individuals in the workforce today can attest. While these symptoms may have affected the Veteran's employment, that effect is already contemplated by the Veteran's 50 percent evaluation for PTSD during this timeframe. See 38 C.F.R. § 4.1 ("The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations."); Van Hoose, supra. Additionally, although the Veteran reported that he prefers to be alone, many occupations provide opportunities to work independently-including carpentry, a field in which the Veteran has prior experience. The Board acknowledges the Veteran's report of harming animals, which he attributed directly and solely to his psychiatric symptomatology, but this can and was remedied by avoiding fields of occupation that interact with animals-again, such as carpentry. ? The Board further finds that the Veteran's bilateral hearing loss and tinnitus during this period did not meaningfully impact the Veteran's ability to work. The Veteran reported no functional impairment as a result of his tinnitus, and the functional impairment of his bilateral hearing loss would primarily result in, perhaps, requests for information to be repeated if there was background noise or if a direction was given from a distance. Repeating instructions or information is a reasonable accommodation most employers would make for someone hard of hearing and therefore does not preclude employment. Thus, regardless of whether the Board considers the Veteran's PTSD alone or in the aggregate with his hearing loss and tinnitus, the Board finds the Veteran's service-connected disabilities did not render him unable to obtain or maintain substantially gainful employment at any time during the period on appeal. Accordingly, a TDIU prior to April 4, 2018, is not warranted by the evidence of record at this time. See 38 C.F.R. § 4.16. SMC Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, in the case of an award of SMC, benefits are to be accorded when the Veteran becomes eligible without need for a separate claim. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Thus, any effective date must be based on the point in time when the evidence first supports an award of SMC, which may be before the Veteran raised the issue of his entitlement to SMC. Id. Nevertheless, there must be a pending claim before VA on which such an award can be tied. ? SMC is payable for housebound status on a statutory basis where the claimant has a single service-connected disability rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Alternatively, such compensation may be granted when the claimant is permanently housebound by reason of service-connected disability or disabilities. Id. There is no indication the Veteran is permanently housebound by reason of his service-connected disabilities; rather, the Veteran is in receipt of SMC based on his TDIU and additional service-connected disabilities ratable at 60 percent or more. In this regard, the Board observes the Veteran is in receipt of a TDIU from April 4, 2018, but SMC from February 14, 2019. The reason for these different effective dates is the award of service connection for obstructive sleep apnea (OSA) with a 50 percent evaluation from February 14, 2019; this is the disability that, when combined with the Veteran's 10 percent evaluation for tinnitus, satisfies the 60 percent requirement. Prior to February 14, 2019, the Veteran was not service connected for any disabilities other than his PTSD, hearing loss, and tinnitus. Thus, regardless of whether the Veteran were awarded a TDIU based on a single disability prior to April 4, 2018, he would still not be entitled to an earlier effective date for the award of SMC because he does not have additional service-connected disabilities independently ratable at 60 percent or more prior to February 14, 2019, when he became service connected for OSA. In other words, the Veteran is already in receipt of the earliest possible effective date for the award of SMC based on housebound status. Accordingly, an effective date prior to February 14, 2019 for the award of SMC based on housebound status on a statutory basis is denied. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.2500. In so reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuhns 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.