Citation Nr: 1752330 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-01 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating for compensation purposes based upon individual unemployability (TDIU) prior to March 30, 2016. ORDER Entitlement to a TDIU prior to March 30, 2016 is granted. WITNESSES AT HEARING ON APPEAL The Veteran and his brother FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation consistent with his education and occupational experience throughout the rating period on appeal prior to March 30, 2016. CONCLUSION OF LAW The criteria for a TDIU prior to March 30, 2016 have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in August 2014. A transcript of that hearing is of record. This matter was previously remanded by the Board in July 2015. The Board finds there has been substantial compliance with the July 2015 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting the claim before it in full. Accordingly, any error committed with respect to either the duty to notify or the duty to assist is harmless and will not be further discussed. Entitlement to a TDIU Prior to March 30, 2016 The Veteran contends that he has been unemployable due to his service-connected disabilities throughout the period on appeal, including prior to March 30, 2016. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The rating period on appeal stems from an August 13, 2012 claim for increase. Throughout the rating period for consideration on appeal, from August 14, 2011, the Veteran has been service-connected for ischemic heart disease, rated as 60 percent disabling prior to March 30, 2016 and 100 percent disabling from March 30, 2016; left knee replacement, rated as 30 percent disabling; posttraumatic stress disorder (PTSD), rated as 30 percent disabling; diabetes mellitus type II, rated as 20 percent disabling; and erectile dysfunction, rated as noncompensable, resulting in a combined disability evaluation of 80 percent prior to March 30, 2016, and 100 percent from March 30, 2016. The 100 percent evaluation renders moot the issue of entitlement to a TDIU from March 30, 2016, as the Veteran is in receipt of special monthly compensation pursuant to 38 U.S.C. § 1114(s) from March 30, 2016. However, the combined evaluation of 80 percent prior to March 30, 2016, meets the schedular criteria for a TDIU. The question before the Board is whether the Veteran was unable to obtain or maintain substantially gainful employment consistent with his education and previous work experience because of his service-connected disabilities prior to March 30, 2016. The Board finds that he was unable to do so. The Board notes that although the Veteran contends he is in receipt of disability benefits from the Social Security Administration (SSA) due to his heart and knee disabilities, a September 1991 SSA disability determination and transmittal found that the Veteran was disabled due to affective (mood) disorder, and an August 1991 medical record from the SSA noted the Veteran had been diagnosed with severe PTSD and was unable to work for at least one year. A January 1999 SSA treatment record indicates that the Veteran continued to suffer from PTSD and found that the Veteran would be greatly impaired in all areas of competitive work, meaning that the Veteran would still be disabled. A March 2013 VA examination found that the functional impairment of the Veteran's left knee disability was reduced mobility such that the Veteran could only walk 100 feet and needs to rest afterwards, which could severely limit his physical employability. The examiner found that the Veteran's heart condition also limited his capacity to perform physical work. A March 2013 psychiatric examination noted that the Veteran reported last working in 1991 as an over-the-road truck driver, but that he stopped because he did not want to do it anymore. The examiner felt that the Veteran was less likely than not unemployable due to his PTSD, finding no significant impairment in reliability, mild intermittent impairment in productivity, mild impairment of concentration, no impairment due to PTSD of ability to follow directions, no impairment in the ability to interact with supervisors or coworkers, no impairment due to PTSD of short-term memory, no impairment due to PTSD of judgment, no impairment of abstract thinking or self-care, and mild intermittent impairment of mood. October 2013 and November 2014 examinations found that the Veteran takes insulin injections more than once per day to treat diabetes mellitus, but that this did not impact his ability to work. A hearing was conducted in September 2014. The Veteran testified that he was unable to multitask because of his PTSD, that he angers easily, and that he has a problem with short-term memory. He was unable to climb stairs or stand for long periods of time without difficulty due to his left knee disability. The Veteran felt that because of his heart disability he had to stop and catch his breath after walking maybe 100 feet, and could work maybe five minutes if lucky. He asserted that he last worked as a truck driver, which was his only occupational experience, and that he was a high school graduate with incomplete trade school training as an automotive mechanic. The Veteran's brother, S.K., testified that the Veteran fell asleep 5 or 6 times a day, was not permitted to use the stove or oven because he would not remember to turn it off, had set the bed on fire a couple of times due to falling asleep while smoking, will go to the bathroom multiple times throughout the night when his blood sugar is up which would impair his ability to be awake the next morning to work, and forgets things frequently. S.K. also stated that the Veteran had two car accidents in six months because of his difficulty paying attention while driving. A February 2015 VA treatment record noted that the Veteran had failed a driving test in June 2014 due to distractibility and impulsivity combined with a history of multiple car crashes associated with similar behaviors. The physician noted the Veteran required assistance from his brother in all activities of daily living, and discussed the Veteran's recent failure to recognize his apartment was filling up with smoke due to a ham left too long in the oven, putting groceries in the closet instead of the refrigerator, failing to pay bills, and forgetting to take medications, which caused the physician to conclude that at this level of functioning, it is hard to imagine a job he could manage independently. However, a March 2016 VA psychiatric examination found that the primary focus of the Veteran's psychiatric treatment, including the February 2015 treatment note, over the past several years has been frontal-temporal dementia (FTD), which is not service-connected. The examiner explained that the Veteran's inability to function is a product of his dementia, not his service-connected PTSD. The examiner found that the Veteran's PTSD symptoms resulted in no significant impairment in reliability, productivity, concentration, ability to follow directions, ability to interact with supervisors and co-workers, short-term memory, judgment, abstract thinking, mood, and self-care. Other March 2016 examinations found that the Veteran's service-connected erectile dysfunction did not impact his ability to work, but that the Veteran's left knee disability prevented the Veteran from driving for prolonged periods and would preclude truck driving. The Veteran's heart condition resulted in fatigue precluding him from doing any activities that require lifting of more than 10 pounds and any strenuous activity that requires walking or climbing stairs. The March 2016 examiner also found that the Veteran was also unable to do interstate driving because of taking insulin for type 2 diabetes. When considering the combined effects of the Veteran's service-connected disabilities, the examiner concluded that the Veteran was precluded from truck driving or any job requiring repetitive lifting of more than 10 pounds. The Veteran's disabilities would allow him to do seated jobs where he was allowed to change positions as needed, but the examiner noted that the Veteran may be unable to do office work due to the fact that his highest level of education was high school. Although the distractibility and loss of memory that is the primary cause of the Veteran's loss of functioning appears to be non-service-connected, and thus not for consideration, the record reflects that the Veteran's physical service-connected disabilities rendered him unemployable prior to March 30, 2016. The March 2016 examinations found that the Veteran was unable to pursue his previous employment of truck driving due to his left knee and because he was an insulin-dependent diabetic. The Veteran was noted to be insulin-dependent in October 2013 and November 2014, although those examiners did not discuss the impact of his insulin dependence upon the Veteran's ability to work as a driver. The Veteran's hearing testimony indicated severe left knee disability in line with the March 2016 examination. As the record contains a finding that insulin-dependence and the Veteran's left knee disability prevent the Veteran from pursuing the occupation of truck driver, and the record reflects that the Veteran was insulin-dependent and suffered from severe left knee symptoms before March 30, 2016, the evidence is at least in equipoise that the Veteran was unable to work as a truck driver prior to March 30, 2016. The Board notes that driving a truck was the Veteran's only occupational history, and that he has a high school education. His left knee and heart disabilities prevent him from maintaining employment in the realm of physical labor, and his lack of education, experience, and training make sustaining sedentary office work an unreasonable expectation. Therefore, with resolution of doubt in the Veteran's favor, the Board finds that for the duration of the rating period on appeal prior to March 30, 2016, the Veteran was unable to obtain or sustain substantially gainful employment consistent with his occupational experience and educational training. The Veteran's claim is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Budd, Associate Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs