Citation Nr: 1802614 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-28 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from June 1965 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in June 2012. A transcript is of record. This matter was previously before the Board in August 2015, when it was remanded for extraschedular consideration to the Director, Compensation Service. As noted then, a claim for a TDIU is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In that same decision, a rating in excess of 50 percent for PTSD was denied. The Veteran appealed to the Court of Appeals for Veterans' Claims (Court), and in April 2017, the Court affirmed the denial of an increased rating for post-traumatic stress disorder (PTSD), and vacated and remanded the issue listed above. The Board finds there has been substantial compliance with its prior remand directives. See D'Aires 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 violation when the examiner made the ultimate determination required by the Board's remand). Specifically, the Director submitted a report in February 2017, which denied the Veteran's entitlement to a TDIU on an extraschedular basis. FINDING OF FACT The competent and probative evidence is at least in relative equipoise as to whether the Veteran's service-connected PTSD, in combination with his service-connected diabetes mellitus II, render him unable to secure or maintain substantially gainful employment consistent with his education and work history. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his service-connected PTSD and diabetes mellitus II have prevented him from securing or maintaining substantially gainful employment. As the issue decided herein is granted in full, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed further. TDIU A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In April 2017, the Court remanded the matter for the Board to determine whether the Veteran's service-connected disabilities are "multiple injuries incurred in action" within the meaning of § 4.16(a)(4). See 10/18/2017, CAVC Decision, at p. 8, 10. The Board concludes that his service-connected disabilities are considered one injury, as they are multiples injuries incurred in action. In this respect, an October 2004 rating decision awarded service connection for diabetes mellitus II due to his herbicide exposure in Vietnam, and a December 2008 rating decision granted service connection for PTSD based upon Vietnam combat service. See 10/25/2004, Rating Decision - Narrative; 12/1/2008, Rating Decision - Narrative. Together, they constitute a single disability resulting from the Veteran's Vietnam service, and he meets the schedular requirement of 60 percent disabling from December 30, 2010 onward. C.F.R. §§ 4.16(a), 4.25. The Board finds that the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Following the Veteran's active service, he has been employed in a number of semi-skilled to skilled physical occupations. His work history includes positions as an automobile assembler, firefighter, cement truck driver, heavy equipment operator, forklift driver, long distance truck driver, and part-time employment as a caregiver. See 10/18/2017 - Medical Treatment Record (MTR), at p. 5. The Veteran does not have experience in a sedentary occupation. The Veteran's medical treatment records describe his PTSD. In May 2010, he stated that he had not been bothered much by psychological or emotional problems in the last month, and that he did not consider treatment for the problems to be important. See 6/3/2011, MTR, at p. 55. The Board finds these statements competent and credible. The Veteran underwent a VA examination in May 2011. The examiner noted that the Veteran has not worked since 2000, but opined that his PTSD would not be a factor in his psychosocial functioning. See 5/6/2011, VA Examination, at p. 6, 17. The Veteran was hospitalized in 2011 and 2012. The first period lasted from January 19, 2011 to February 9, 2011, and the second was from July 10, 2012 to August 9, 2012. See VBMS 08/04/2011, LCM - VAMC Report of Hospitalization; VBMS 08/09/2012, LCM - CAPRI. The Board finds these hospitalizations probative as to whether the Veteran can secure or follow substantially gainful employment because of the effect they would have on maintaining any potential employment. In 2015, a private vocational evaluator interviewed the Veteran, and the evaluator reexamined his opinion again in 2017. The vocational evaluator concluded that the Veteran was unable to work due to his service-connected disabilities. 10/4/2017, MTR, at p. 4. The evaluator found the Veteran's PTSD symptoms of mood disturbance, irritability, rage, daytime flashbacks, nightmares, poor sleep patterns, anxiety with panic, avoidance behaviors, startle response, low energy, and isolation and difficulty with relationships, prevented him from securing and following substantially gainful employment since 1998. Id. Notably, the Veteran reports daytime flashbacks that occur two to three times per day, which result in an inability to focus, and can last up to an hour. 10/18/2017, MTR, at p. 4. The Board notes the difficultly the Veteran would have maintaining an occupation similar to any of his previous positions where he would be unable to focus for an hour multiples times per day. Id. In particular, the Veteran would be unable to work in position similar to his prior occupation as a long distance truck driver if he had lapses in concentration coupled with daytime flashbacks where he could not focus. Furthermore, the Veteran testified that when he was employed he would often think about Vietnam, which caused him to not pay attention, and resulted in him losing multiple jobs. See 06/07/2012, Hearing Testimony, at p. 8. Also included in the 2015 and 2017 vocational reports was the effect that the Veteran's nightmares have upon him and his need for isolation. He has reported nightmares four to five times per week, which leave him feeling drained the next morning, and he is unable to accomplish anything. 10/18/2017, MTR, at p. 4. The Board notes the problems the Veteran would have in securing or maintaining employment when he is unable to work after experiencing nightmares four to five times a week, particularly when he lacks experience in sedentary positions or a position where he could work from home. Additionally, his need for isolation would compound on the difficulty in securing or following gainful employment in appropriate employment settings when combined with his lack of energy and inability to concentrate. The Board finds the evaluator's report to be competent, credible, and highly probative because of the extensive review of the Veteran's file, the interview with the Veteran, and the evaluator addressing the Veteran's PTSD induced symptoms and the effect they have on his ability to secure or maintain employment. After having reviewed the record and weighing the evidence both in support of and against the claim, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Although the Veteran briefly described his PTSD-induced emotional and psychological problems as not problematic in May 2010, he has had two hospitalizations following those statements. While the VA examiner in May 2011 concluded that the Veteran's PTSD would not be a factor in his psychosocial function, the Veteran has frequent daytime flashbacks and nightmares due to his PTSD. These flashbacks and nightmares can result in lack of concentration multiple times per day and lethargy the next morning following nightmares, and he testified that he has lost several jobs due to these PTSD symptoms. Additionally, the Veteran is more suited towards work that he can do alone (because of his need to be isolated), but is not suited for truck driving because of his PTSD symptoms -inability to focus and daytime flashbacks - and he does not have experience in a position where he could work from home. Thus, the Board finds that the Veteran is prevented from securing or following a substantially gainful occupation due to his service-connected disabilities, and therefore, is unemployable for VA purposes from December 30, 2010. 38 C.F.R. § 4.16. ORDER Entitlement to a TDIU is granted. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs