Citation Nr: 1801158 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-35 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The appellant served on active duty from January 1969 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2017, the Veteran testified at a Board hearing held at the RO. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The appellant meets the schedular requirement for TDIU, and his service-connected PTSD renders him unemployable. CONCLUSION OF LAW With reasonable doubt resolved in favor of the appellant, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, 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 disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. In adjudicating the issue of entitlement to a TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. The Veteran's service-connected disabilities include PTSD, rated 50 percent disabling; peripheral neuropathy of the right lower extremity, rated 20 percent disabling; peripheral neuropathy of the left lower extremity, rated 20 percent disabling; and diabetes mellitus, type II, rated 20 percent disabling. His combined rating is 80 percent. He thus meets the schedular requirements for TDIU. 38 C.F.R. § 4.16 (a). In terms of the Veteran's educational background, the record shows that he has a juris doctor degree. As far as his work history, he retired in December 2010 after working as a sole practitioner in a law firm for approximately 36 years. Regarding the impact of the Veteran's service-connected disabilities on his employment, the Veteran reported at VA PTSD examinations in August 2011 and June 2012 that clients complained of his rudeness and that he had difficulty getting along with other attorneys. Also, he testified in October 2017 that he had trouble remembering things and he was not performing at the level that he was accustomed to. In addition, the record contains affidavits from people who had worked with the Veteran, including a circuit court judge, the Veteran's secretary, and a private investigator, all of whom attested to witnessing the Veteran's short term memory problems. They reported that these problems came on suddenly and just a few months before the Veteran retired. With respect to whether the Veteran is unemployable, the record clearly shows that he is unable to establish or maintain employment. This is evident in a September 2014 statement from Dr. K. who opined that the Veteran was not medically able to sustain gainful employment of any type due to his progressive short term memory loss, bipolar disorder and PTSD. Similarly, Dr. J. opined in statements dated in September 2014 and May 2015 that the Veteran was not able to establish or maintain employment or to manage his financial or legal matters due to his PTSD, bipolar disorder and cognitive impairment. In addition, a private psychologist, Dr. Bynum, recommended in October 2015 that the Veteran wear a tracking bracelet because of his dementia and tendency to wander. As noted, the Veteran's service-connected disabilities include PTSD, but they do not include dementia/cognitive disorder or bipolar disorder. Thus, the question is whether his service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation. In addressing this question in June 2012, a VA examiner reported that he was unable to state whether the Veteran was unemployable due to his PTSD symptoms alone. He diagnosed the Veteran at that time as having PTSD and bipolar disorder and he deferred a decision regarding a diagnosis of cognitive disorder. He explained that he was unable to fully differentiate impairment by diagnosis. See Mittleider v. West, 11 Vet. App. 181 (1998) (where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability). Nonetheless, the examiner noted that the Veteran's PTSD symptoms included mild memory loss such as forgetting names directions or recent events. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (b) (2012). Given the Veteran's educational background and his occupational history; the impact that each of his service-connected disabilities have on his ability to work, notably his PTSD and mild memory loss; and the private opinions in 2014 and 2015 outlined above, the evidence is at least in equipoise as to whether the Veteran's is precluded from obtaining and maintaining any form of gainful employment due to his service-connected disabilities alone. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER Entitlement to a TDIU rating is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs