Citation Nr: 25001132 Decision Date: 01/28/25 Archive Date: 01/28/25 DOCKET NO. 18-16 639 DATE: January 28, 2025 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service connected posttraumatic stress disorder (PTSD) is granted. Entitlement to special monthly compensation based on housebound status for the appeal period beginning on October 17, 2023 is granted. FINDINGS OF FACT 1. The Veteran's service connected PTSD rendered him unable to obtain and maintain substantially gainful employment. 2. For the appeal period beginning on October 17, 2023, the Veteran is in receipt of a TDIU due to his service connected PTSD and he has other service connected disabilities, to include voiding dysfunction associated with cerebral vascular accident, left upper extremity weakness associated with cerebral vascular accident, bilateral tinnitus, hypertension and cerebral vascular accident, that were separately rated as 60 percent disabling or more. CONCLUSIONS OF LAW 1. The criteria for a TDIU due to service connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for entitlement to special monthly compensation based upon housebound status for the appeal period beginning on October 17, 2023 have been met. 38 U.S.C. §§ 1114(s), 1155, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to March 1972 and January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), agency of original jurisdiction (AOJ). The issue of TDIU stems from appeal of the issue of entitlement to a rating in excess of 50 percent for PTSD. A March 2020 Board decision denied the Veteran's claim for an increased rating, and the Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 decision, the Court granted a Joint Motion for Remand (JMR) of the parties vacating the Board's March 2020 decision, remanding the issue to the Board. In July 2021 and January 2022, the Board remanded the issue of entitlement to an increased rating for PTSD for further development. In July 2022, the Board found that the issue of entitlement to TDIU was raised by the record and was inextricably intertwined with the issue of entitlement to an increased rating for PTSD. The matters were remanded again for further development. A November 2022 Board decision granted entitlement to an initial 70 percent rating for PTSD and remanded the issue of TDIU for further development. Thus, the matter of entitlement to an increased initial rating for PTSD is no longer before the Board. This case was most recently before the Board in August 2023 and again in June 2024, at which time the issue of entitlement to TDIU was remanded for additional development. Following additional development, in December 2024 the agency of original jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC). The matter therefore returns to the Board for adjudication. 1. Entitlement to a TDIU due to service-connected PTSD is granted. 2. Entitlement to special monthly compensation based on housebound status for the appeal period beginning on October 17, 2023 is granted. The Veteran contends that he is unable to secure or follow a substantially gainful occupation solely as a result of his service connected PTSD. See October 2021 Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). 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 (2009). Therefore, when adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering a veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering a veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering a veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16(b) as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: a 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 a veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169. The veteran's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As noted, the Veteran indicates that he is unable to secure or follow a substantially gainful occupation as a result of his service connected PTSD. In the instant case, and as of the date of this decision, service connection is in effect for PTSD, rated as 70 percent disabling from March 8, 2017 (the date of the intent to file a claim). The Veteran is also service connected for voiding dysfunction associated with cerebral vascular accident, rated as 40 percent disabling since October 26, 2023; left upper extremity weakness associated with cerebral vascular accident, rated as 30 percent disabling since October 26, 2023; bilateral tinnitus, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; cerebral vascular accident, rated a 10 percent disabling since October 17, 2023; residuals of a right ankle strain, rated noncompensably disabling since March 10, 1972; residuals of a right scapula strain, rated as noncompensably disabling since March 10, 1972; and bilateral hearing loss, rated as noncompensably disabling since March 23, 2016. The Veteran's combined rating been 10 percent since March 23, 2016; 70 percent since March 8, 2017; 80 percent since August 10, 2022; and 90 percent since October 26, 2023. Thus, the schedular criteria for a TDIU have been met throughout the period on appeal. A review of the record demonstrates that the functional impairment consistent with the Veteran's service connected PTSD renders him unable to secure and maintain substantially gainful employment. In an October 2021 VA Form 21-8940, the Veteran indicated that his PTSD affected full-time employment in March 2019, that he last worked full-time in September 2019, and that he became too disabled to work in September 2019. The Veteran reported that he last worked for a casino as a pit boss for 40 hours per week. He stated that his highest gross earnings per month were $5,750.00. He indicated that he left his last job because of his disability. He reported completing one year of college education. Turning to the evidence of record, in September 2022 the Veteran was afforded a VA examination for his service connected PTSD. The examiner found that the Veteran's psychiatric symptoms, which included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effect work and social relationships, and difficulty adapting to stressful circumstances, manifested as occupational and social impairment with reduced reliability and productivity. The Veteran's familial relationships had not changed, with one of the Veteran's granddaughters visiting him often. He was still involved in church and taught Sunday school and attended men's group, though he did not have many friends or social relationships. The Veteran reported that he worked at casinos from 2009 to 2019, that he left due to medical and mental health issues, and that he had been working "side jobs" such as cutting grass for several years. The examiner noted the Veteran's thought process was coherent and goal-directed with no evidence of hallucinations, delusions, or paranoia. The examiner noted that the Veteran reported he is able to perform "odd jobs" occasionally and on his own schedule, but maintaining a regular work schedule would most likely prove difficult for him due to his ongoing PTSD symptoms. This examiner concluded that based on the records and Veteran's current reported symptoms that he would not be able to obtain and maintain substantially gainful employment. During April 2024 VA examination, the Veteran indicated he worked in the casinos in New Jersey for over 30 years. His last job was working for 10 years as a casino boss/general floor supervisor with oversight over a number of floor operations at the casino. He said that he stopped working when he was 67 years old. He indicated that physically he could no longer do the job. He said that he had also done some landscaping on the side but is no longer able to do that. Symptoms include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner indicated that the Veteran's PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Based on the foregoing, and in consideration of the pertinent clinical findings, the Board concludes that the combined functional impact of the Veteran's service-connected PTSD have rendered him unable to secure or follow a substantially gainful employment throughout the appeal period. With regards to the component of substantially gainful employment, the evidence of record shows that the Veteran was employed at a casino until September 2019. See October 2021 VA Form 21-8940. His occupational history included working as a casino dealer or pit boss until September 2019. He had earned a high school degree and has attended some college classes. Turning to the noneconomic component of substantially gainful employment, the Board notes the Veteran has been afforded multiple VA examinations which have assessed the nature and severity of his service-connected PTSD. The October 2024 VA examiner noted that the Veteran's PTSD manifested as a depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting. Such functional impairments would impact the Veteran's ability to work as a casino dealer or pit boss as both occupations require working in stressful circumstances and maintaining effective relationships with co-workers, supervisors, subordinates, customers, law enforcement or security. His occupations would also require him to be able to concentrate on his tasks, as well. Further, the Veteran's sleep difficulties and memory impairments would be a hinderance to his work as a casino dealer or pit boss, as both are occupations requiring a high degree of attention to detail in a fast passed environment with many distractions. See Ray v. Wilkie, supra. The Board notes that the Veteran reported some intermittent or occasional work in landscaping and cutting the grass. There is no indication or argument that the Veteran's intermittent or occasional work in landscaping or cutting the grass was gainful. See LaBruzza v. McDonough, 37 Vet. App. 111 (2024); see also Cantrell v. Shulkin, 28 Vet. App. 382 (2017). VA's duty to maximize benefits requires it to assess all of a claimant's service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, the Court held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a "total" rating. When a Veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, special monthly compensation based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230; Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280). A veteran with a 100 percent schedular rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the special monthly compensation requirements (100 percent rating plus 60 percent rating). A TDIU could meet the special monthly compensation requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a "total" (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for special monthly compensation. See Buie at 249-50. In this case, the Veteran is being awarded a TDIU solely based on his service connected PTSD. He also has other service connected disabilities, to include voiding dysfunction associated with cerebral vascular accident, left upper extremity weakness associated with cerebral vascular accident, bilateral tinnitus, hypertension and cerebral vascular accident, that were separately rated as 60 percent disabling or more since October 17, 2023. The Board finds that special monthly compensation under 38 U.S.C. § 1114(s) for statutory housebound benefits is warranted as of October 17, 2023. Based on the foregoing, the Board finds a TDIU due to service connected PSTD is warranted. The Board also finds that special monthly compensation based on housebound status is warranted as of October 17, 2023. To that extent, the appeals are granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.