Citation Nr: 1752613 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-06 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Monera M. Seliem, Attorney at Law ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1964 to December 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record. FINDING OF FACT The Veteran's service-connected disabilities [posttraumatic stress disorder (PTSD), rated 70 percent; right shoulder strain and degenerative joint disease (DJD), 30 percent; postoperative prostate cancer, 20 percent; residuals of appendix surgery with scars, 10 percent; erectile dysfunction, 0 percent] are rated 90 percent, combined, and are reasonably shown to be of such nature and severity as to preclude his participation in substantially gainful employment consistent with his education and experience. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria, Factual Background, and Analysis A TDIU rating may be assigned, where the schedular rating is less than total, when a Veteran is unable to maintain a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected disabilities include PTSD, rated 70 percent; right shoulder strain and degenerative joint disease (DJD), 30 percent; postoperative prostate cancer, 20 percent; residuals of appendix surgery with scars, 10 percent; erectile dysfunction, 0 percent. The combined schedular rating is 90 percent. Therefore, the schedular rating requirement for a TDIU rating under 38 C.F.R. § 4.16(a) is met. The remaining (and dispositive) question is whether the service-connected disabilities render him incapable of participating in regular substantially gainful occupation consistent with his education and work experience. For a veteran to prevail on a claim for TDIU, neither the veteran's nonservice-connected disabilities nor his advancing age may be considered. 38 C.F.R. § 4.19. Also, it is necessary that the record reflect some factor that places the veteran in a different category than other veterans with equal ratings of disability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361(1993). The Veteran has reported that he has a high school education with one year of college coursework. Following service, he worked as a supervisor for a steel plant before working as a school custodian. See May 2013 VA Form 21-8940; see also October 2016 Travel Board hearing. He reported that he last worked full-time in May1991. Social Security Administration (SSA) records show that he established entitlement to Social Security disability benefits in June 1992, with a primary diagnosis of brachial plexopathy. On September 2010 VA examination of the Veteran's right shoulder, the diagnosis was a chronic right shoulder strain. He related that he was an office clerk for a steel plant for 12 years, and indicated that he is no longer able to perform clerical duties, such as typing, due to his right shoulder disability. He also reported that he is unable to lift objects weighing in excess of 30 lbs. On September 2010 PTSD examination, the Veteran's self-reported symptoms included: recurrent and intrusive distressing recollections, increased arousal, sleeping difficulties, irritability, hypervigilance, hyperarousal, avoidance and numbing symptoms, aggression and violence. The Veteran described his mind-set as "dark" and stated, "I'm not nice to be around, I get nasty". He reported past suicidal ideation and physiological reactivity such as sweating, upset stomach and feeling "fidgety". The examiner opined that the Veteran's PTSD interferes with his normal daily activities in that his irritability and outbursts of anger are extremely disruptive to social relationships. He opined that the Veteran's PTSD does not interfere with employment. The examiner noted that the Veteran worked as a supervisor at a steel mill before began receiving disability benefits and stated that the Veteran's PTSD "does not appear to have interfered with his employment." On October 2010 stomach examination, the diagnoses were acute appendicitis with periappendiceal abscess and two tender scars secondary. The examiner noted that the Veteran has not worked since April 1991 and opined that the diagnosed conditions do not currently effect his occupation, "as he has no occupation". In a May 2011 clarifying opinion, the September 2010 PTSD examiner opined there is no occupational impairment attributable to the Veteran's PTSD. He stated that the Veteran's "current occupational impairment is fully attributable to non-psychological factors (i. e his physical condition). There is no evidence in his history that his occupational functioning was impaired by symptoms of posttraumatic stress disorder." He noted that the Veteran's PTSD has had some impact on his social functioning, manifested in irritability and outbursts of anger which the Veteran reported were disruptive to his social relationships. On June 2011 genitourinary examination, localized prostate cancer in remission, status post suprapubic prostatectomy and partial erectile dysfunction were diagnosed. The examiner opined that the Veteran would be able perform his occupation as a supervisor for a steel mill despite his genitourinary condition, but with limitations. He noted that the Veteran would need to void frequently. On June 2011 general medical examination, the same examiner opined that the Veteran's genitourinary condition would not preclude light duty and sedentary type employment, however, the Veteran would have difficulty with heavy labor type of occupations due to the frequent voiding. At the October 2016 Travel Board hearing before the undersigned, the Veteran testified that he is a loner; does not want to be around people; does not want to work with people; has problems with management and taking orders; and has severe anger problems. It was noted that he has strong suicidal ideations, even with treatment. The Veteran testified that when he worked at the steel mill, he did not trust people and preferred to be alone. It was noted that the Veteran's right shoulder disability precludes employment such as in his prior human resource's job because he no longer able to engage in typing or writing. He testified that he frequently wakes in the middle of the night to urinate (and sometimes has accidents, both during the day and at night). On February 2017 examination of the Veteran's right shoulder, the diagnoses were right shoulder strain and arthritis degenerative joint disease (DJD). The examiner opined that the right shoulder DJD is a progression of the Veteran's service-connected right shoulder strain, and that right shoulder disability impacts on occupational functioning because he only has minimal use of his dominant arm. Given the nature and severity of the Veteran's service connected disabilities and barriers to occupational opportunities from his limited educational background and occupational experience, the Board finds it reasonable to conclude that his service-connected disabilities render him unemployable While the September 2010 and October 2010 VA examiners opined that the Veteran's service-connected disabilities, separately, do not impact on employment, the Board finds that those conclusions less than persuasive. In essence the examiner's found the lack of impact on employment because the Veteran is not seeking employment, and did not discuss how the service-connected disabilities impact on his ability to work. While the September 2010 VA examiner opined that the Veteran's PTSD affects only social functioning, the Board observes that the disability is rated 70 percent (which reflects deficiencies in most areas, including occupation). Notably, the September 2010 VA PTSD examiner also opined that the Veteran's PTSD interferes with his normal daily activities noting symptoms of irritability and outbursts of anger; there is no explanation why such symptoms would have no effect in a workplace. The June 2011 VA genitourinary examiner opined that the Veteran's postoperative prostate cancer does not preclude light duty/sedentary type employment, but that he would have difficulty with heavy labor types of occupations due to frequent voiding. And the February 2017 examiner opined that Veteran's right shoulder disability impacts on occupational ability because he has minimal use of his dominant arm. Considering the combined effects of the symptoms of, and limitations due to the Veteran's service connected disabilities (which would preclude physically demanding forms of work), and noting that his limited education and experience would not have prepared him for the types of work that are sedentary and do not require extensive use of upper extremities, the Board finds that due to his service connected disabilities, the Veteran is precluded from participation in regular, substantially gainful employment. Resolving any remaining reasonable doubt in the Veteran's favor as required (see 38 C.F.R. § 4.3), the Board finds that the requirements for establishing entitlement to a TDIU rating are met, and that such rating is warranted. ORDER A TDIU rating is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs