Citation Nr: 1751905 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-11 144A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 30, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In July 2015, the RO increased the schedular rating assigned for the Veteran's service-connected major depressive disorder to 100 percent and granted special monthly compensation (SMC) under 38 U.S.C.S. § 1114(s), both effective October 30, 2014. Those grants render the issue of entitlement to a TDIU from October 30, 2014, forward, moot. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008); DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (Mar. 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375(1999)). Thus, the remaining issue on appeal is entitlement to a TDIU prior to October 30, 2014. The title page has been updated accordingly. FINDINGS OF FACT 1. The Veteran's TDIU claim was received by VA on May 21, 2010. 2. Throughout the claim period, the Veteran's service-connected disabilities-inactive tuberculosis pleurisy with residual restrictive lung disease (rated as 60 percent disabling); major depressive disorder (rated as 50 percent disabling); rheumatic heart disease (rated as 10 percent disabling); and rheumatic fever (rated as noncompensable)-resulted in a combined rating totaling 80 percent. 3. The Veteran's education includes four years of college and a law degree. Post-service, he worked in real estate law, property management, and financial management; he also owned his own mortgage company. 4. The Veteran was not gainfully employed at any point during the claim period. 5. In June 2010 correspondence, the Veteran stated that his depression, although treated with medication, "often returns as depression or anxiety when faced with work situations in my employment which has resulted in my being laid off from the last two positions I held." During a May 2015 VA contract examination, he described "occupational difficulties due to overwhelming stress in the workplace" during his last four jobs. 6. During an August 2010 VA QTC (contract) examination conducted to assess the severity of his rheumatic heart disease and rheumatic fever, the Veteran reported an inability to climb stairs or ladders and to perform other inspection activities while working as a property manager. The examiner reported objective findings of dyspnea on exertion and fatigue due to both morbid obesity and the Veteran's heart condition, and characterized the effect of his rheumatic heart disease and rheumatic fever on his usual occupation as tiredness and an inability to walk for long periods. 7. In June 2011, a VA QTC examiner reported that symptoms associated with the Veteran's tuberculosis pleurisy residuals prevented him from participating in strenuous activities. 8. During a June 2012 VA mental disorders examination, the examiner reported that the symptoms of the Veteran's major depressive disorder included, among others, anxiety; mild memory loss; disturbances of motivation and mood; inability to establish and maintain effective relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU are met effective May 21, 2010. 38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Following review of the evidence of record, the Board finds that the Veteran is entitled to a TDIU prior to October 30, 2014, as he was unemployed, his service-connected disabilities met the schedular criteria for a TDIU, and, with resolution of reasonable doubt in his favor, those disabilities, alone (i.e., independent of his age and his nonservice-connected disabilities), were of sufficient severity to render him incapable "of performing the physical and mental acts required by employment." See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19. The Board has detailed the evidence it finds most relevant to resolution of this claim in the foregoing factual findings. However, it notes, by way of additional explanation, that it finds the psychiatric symptoms identified by the June 2012 VA examiner particularly relevant, given the Veteran's history of primarily sedentary work in fields that may reasonably be presumed to involve handling stressful situations on a frequent basis. Moreover, the record does not support finding that those psychiatric symptoms were absent earlier in the claim period. Indeed, the Veteran's June 2010 discussion of his psychiatric symptoms and the situations that tended to exacerbate them was in keeping with the findings of the June 2012 examiner. In finding that a TDIU is warranted, the Board acknowledges that the Veteran suffers from various nonservice-connected disabilities that, based on his own reports, also affected his ability to function on a daily basis during the claim period. However, any reasonable doubt created by relative equipoise in the evidence must be resolved in the Veteran's favor. 38 U.S.C.S. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Here, in light of the Veteran's statements and the statements of the various examiners, such a state of equipoise has been reached with respect to the question of whether he was precluded, due solely to his service-connected disabilities, from obtaining and maintaining substantially gainful employment prior to October 30, 2014. As a result, a TDIU is warranted effective May 21, 2010-the date on which VA received his claim. ORDER A TDIU is granted effective May 21, 2010. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs