Citation Nr: 1802002	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-18-876	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jeanne Celtnieks, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U. S. Army from June 1950 to June 1953.  The Veteran's DD Form 214 shows that he was awarded the Combat Infantryman Badge.  .

This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision (denying serviced connection for a right knee injury) and an August 2011 rating decision (denying entitlement to TDIU) of the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA).

In a September 2017 rating decision, the RO granted service connection for a right knee disability.  This represents a full grant of the benefits sought on appeal.  The issue is no longer before the Board.  

The Veteran's TDIU claim was initially addressed by the Board's decision of April 2014.  The claim was remanded for a VA psychiatric examination with assessment of the impact of the Veteran's service connected PTSD on his occupational functioning.  The RO was directed to reevaluate the TDIU claim and consider referring the claim to the Director, Compensation and Pension Service (DCPS) for extraschedular consideration under 38 C. F. R. § 4.16(b).  A March 2015 supplemental statement of the case (SSOC) was issued; the file was not referred to DCPS; TDIU remained denied; and the case was returned to the Board.  

Also by a rating decision of March 2015, the RO increased the disability rating for PTSD from 50 percent to 70 percent effective February 5, 2015.  

The August 2016 Board decision noted a hearing was requested but not held.  The claim was remanded for a hearing, which was held before the undersigned by videoconference in May 2017.

Most recently, the August 2017Board decision remanded the claim to the RO for further development as to service connection for a right knee injury.  The TDIU claim was remanded as inextricably intertwined with the service connection claim.  A September 2017 Supplemental Statement of the Case (SSOC) denied entitlement to TDIU and this issue is returned to the Board.

The Veteran's representative contends in the December 2017 Informal Hearing Presentation (IHP) that the issue of an increased rating for posttraumatic stress disorder is on appeal.  This is incorrect.  As discussed in the August 2017 Board decision, a SSOC was issued in March and July 2015 erroneously listing the issue of increased rating for PTSD.  There was, and continues to be, no current rating decision with a timely filed notice of disagreement and a subsequently issued statement of the case on the issue of increased rating for PTSD.  The issue has not been appealed and will not be addressed.  

The issue of entitlement to a TDIU prior to February 5, 2015 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (2012).


FINDING OF FACT

From February 5, 2015 the Veteran's service connected disabilities prevented him from engaging in substantially gainful employment.


CONCLUSION OF LAW

The criteria for entitlement to TDIU have been met since February 5, 2015.  38 U.S.C. §§ 1155, 5107 (2012);  38 C.F.R. §§ 4.3, 4.16 (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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 C.F.R. § 4.16(a).  

In determining entitlement to a TDIU, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991). 

Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator.  See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2015).  

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  Wood v. Derwinski, 1 Vet. App. 190 (1991);  Washington v. Nicholson, 19 Vet. App. 362 (2005).  When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. § 4.3.

The Veteran's PTSD disability is rated as 70 percent disabling from February 5, 2015.  Thus he meets the threshold for consideration of a schedular TDIU rating under 38 C.F.R. § 4.26(a) as of that date.  He has an additional service connected right knee disability, rated as 10% disabling.  

The Veteran credibly testified and wrote letters to VA about the trauma he experienced in combat and the psychological symptoms he suffered after leaving service in 1953.  He reported nightmares and isolation, alcohol abuse, and extreme difficulty maintaining employment.  He conveyed that, through the support of his second wife, he was able to stop drinking.  However, his PTSD symptoms continued.  He claims that while he easily obtained employment, he was unable to maintain employment.  He reports having up to 150 jobs between 1953 and 1997.  
Over the years since his PTSD was diagnosed, three VA psychological evaluations have been performed to access this condition.  The examinations include information helpful in evaluating the Veteran's ability to be employed.  The initial evaluation of March 2009 confirms a diagnosis of PTSD and notes a "history of underemployment."  

The June 2011VA psychiatric evaluation recounts the Veteran's experience of excessive drinking and the resulting loss of 40-50 jobs due to alcoholism.  The examiner noted that while the Veteran was able to stop drinking, he continued to experience "nightmares, sleep problems, anger/irritability, hypervigilance, social isolation, emotional numbing, intrusive thoughts, and reactivity upon exposure to triggers.  These symptoms lead to severe distress and impairment in his life".  

The February 2015 VA psychiatric evaluation, obtained in response to the Board's April 2014 remand, was required to address whether PTSD alone "renders [the Veteran] unable to secure and follow a substantially gainful occupation without regard to age or nonservice connected disabilities".  The examiner found extensive psychological symptoms including "depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, difficulty establishing and maintaining work and social relationships, difficulty adapting to stressful circumstances, and some passive suicidal ideation."  The examiner states "the effect of the PTSD and depressive disorder [which is secondary to the PTSD] on his occupational and social functioning would be causing deficiencies in all of these areas".  Additionally, "he seems to have gotten somewhat worse since his last exam in that he is more withdrawn and isolated."  

The February 2015 examiner, however, was unable to offer an opinion that the "psychiatric symptoms or PTSD alone would cause him not to be able to work." because the Veteran's "cognitive function seems to be pretty good."  The RO, relying on the assessment that the Veteran's cognitive function "seems to be pretty good" denied TDIU.

Entitlement to TDIU is based on a determination that the Veteran is unable to secure or follow a substantially gainful occupation due to his service connected disabilities.  While the Veteran's cognitive function is an important factor in his ability to find and maintain work, it is not the only consideration.  

As stated by the February 2015 VA examiner, the Veteran's PTSD symptoms cause deficiencies in his occupational functioning.  In addition to the obstacles to employment described by the VA examiners in accessing his PTSD, the Veteran did not finish high school.  He does not appear to have the educational background necessary for many types of employment.  His employment history is void of any evidence that he was able to build his skills by training or advance within the construction industry.  His last employment, as a backhoe operator with Star Construction from approximately 1990 to 1997, was his longest.  He left the position, after over 40 years in the construction industry, without advancing into a supervisory, sales, or managerial position.  This would be consistent with the Veteran's testimony that he was able to get a job but had difficulty keeping a job because of his PTSD symptoms.

Finally, the Veteran is now service connected for right knee disability.  According to a September 2017 VA examination, the disability causes pain on walking for distances and climbing stairs.  He also testified that the knee buckles and he uses an electric cart for mobility and wears a knee brace for support.  Thus it appears the Veteran would be limited by his knee disability in doing any sort of physical labor, which appears to be the Veteran's primary occupation over the years.

Considering the Veteran's service connected disabilities, in light of his educational level, employment history, the Board finds after resolving any reasonable doubt in favor of the Veteran, that the Veteran is unable to secure or follow a substantially gainful occupation.  He is entitled to TDIU on a schedular basis as of February 5, 2015. 


ORDER

Entitlement to TDIU is granted from February 5, 2015.


REMAND

The Board notes that prior to February 5, 2015, the Veteran did not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a), as he did not have a combined disability rating of 70 percent or single disability evaluated as 60 percent disability prior to that date.  Therefore, prior to February 5, 2015, the Board is precluded from assigning TDIU in the first instance.  See 38 C.F.R. § 4.16(a).  Nonetheless, as the evidence indicates that the Veteran's service-connected PTSD may have rendered him unable to participate in substantially gainful employment prior to February 5, 2015, the Board finds that a remand is necessary in order to refer the case to the Director, Compensation and Pension Services for consideration under 38 C.F.R. § 4.16(b).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1.  The AOJ should refer the case to the Director of Compensation for adjudication of entitlement to an extraschedular TDIU prior to February 5, 2015 under 38 C.F.R. § 4.16(b).

2.  If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case before the case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112.




____________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs