Citation Nr: 1617000 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 11-16 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In that decision, the RO increased the rating for the Veteran's PTSD to 70 percent. In August 2013, the Board remanded this matter for further evidentiary development. It has since been returned to the Board for adjudication. In the August 2013 remand, the Board noted that the evidence suggested that service-connected posttraumatic stress disorder (PTSD) has resulted in unemployability and, thus, the TDIU claim has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam). The Veteran filed a formal application for a TDIU in October 2013. FINDINGS OF FACT 1. The Veteran is in receipt of service connection for PTSD, rated 70 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated noncompensable. His combined rating is 70 percent from October 18, 2010. 2. The evidence is at least evenly balanced as to whether the Veteran's PTSD renders him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to the only issue on appeal, further discussion of the VCAA is not necessary at this time. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from securing or following any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). The Veteran is in receipt of service connection for PTSD (currently at 70 percent), tinnitus (currently at 10 percent); and bilateral hearing loss (noncompensable). His combined rating is 70 percent from October 18, 2010. He is thus eligible for consideration for a TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. 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 particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. For the following reasons, the Board finds that Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. The Veteran has worked the entirety of his career for the Connecticut Department of Education. See Form 21-8940. He worked there from 1988 until 2009 as an educational consultant. See March 2014 VA Examination Report. The Veteran reported that initially he worked independently from others; however, towards the end of his employment, he was required to react frequently with teachers and other individuals. See id. The Veteran stated that because he was unable to interact with others, he would neglect work and opted to retire early due to his inability to intact with others. See id. The Veteran was afforded a VA examination in November 2010. There, the examiner reported that the Veteran retired early from work due to increased anxiety in dealing with other coworkers. The Veteran reported not wanting to interact with others. He stated that he would stop taking phone calls due to not wanting to speak with anyone else. The examiner stated that the Veteran's prognosis was poor. The examiner stated that it was at least as likely as not that PTSD symptoms led to decreased ability to tolerate frustration and multitask at work. The examiner noted that the Veteran is only able to complete one task at a time and multitasking causes the Veteran to forget what he is doing. The Veteran was afforded a VA examination in March 2014. The examiner opined that it is likely that the Veteran would be moderately impaired in a work environment that requires frequent interactions with customers, peers, and supervisors due to his PTSD. The Veteran reported that after being required to interact with peers more frequently at work, he would call in sick about two times per month due to anxiety. The examiner noted that the Veteran had good productivity when he worked independently of others. Records from the Social Security Administration (SSA) show the Veteran applied for SSA disability benefits in 2011. The Veteran's application for SSA disability benefits on the basis of PTSD was denied. A reconsideration decision from SSA noted that the Veteran was not capable of performing the work he engaged in throughout the entirety of his career, but could engage in work that was less demanding. The Veteran reported difficulty with memory, completing tasks, concentration, and getting along with others. SSA records noted that the Veteran had difficulty interacting in social situations and he maintained very few social relationships. Neither the SSA findings nor the medical opinions are dispositive on this issue. Rather, the question of whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Entitlement to TDIU is based on an individual's particular circumstance. Rice, 22 Vet. App. at 452. Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). The Veteran has a limited employment history. He worked in the same position as an educational consultant with the same school system for the entirety of his career. He worked well in that position until the nature of his position changed-from an independent one into one that required frequent interaction with others. The Veteran had difficulty interacting with others due to his PTSD. Towards the end of his career, the Veteran would let work pile up, he stopped taking telephone calls and would call in sick to work just to avoid having to interact with others. This caused the Veteran to retire early from a position which he once thrived in. The March 2014 VA examiner acknowledged that the Veteran would have at least moderate difficulty working in an environment where he was required to interact with others. The Board accepts the examiner's opinion as probative. Thus, the Veteran has worked in one position his whole career. The nature of that position changed and the Veteran's PTSD significantly inhibited his ability to work in that position. This ultimately forced the Veteran to retire. It is not apparent that the Veteran could be employed in a different position-namely, one that requires minimal interaction with others. Indeed, given the Veteran's sole employment as an educational consultant for decades, it seems unlikely that the Veteran would be successful in changing to a new occupational field. Given the occupational limitations highlighted by the March 2014 VA examiner, it appears that PTSD renders the Veteran unable to secure or follow substantially gainful employment. See December 2015 Appellant's Post-Remand Brief (arguing that the March 2014 VA examination report is probative of the issue of unemployability). Thus, the Board finds that the evidence is at least evenly balanced as to whether his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. See Geib, 733 F.3d at 1354. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A TDIU is granted, subject to controlling regulations applicable to the payment of VA monetary benefits. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs