Citation Nr: 1804949	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-26 435	)	DATE
	)
	)

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


THE ISSUES

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to November 15, 2012. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

A. Dellarco, Associate Counsel 

INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from October 1961 to February 1966.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

In September 2014, the Veteran and his spouse testified during a videoconference Board hearing before the undersigned.  A transcript is of record. 

In May 2015, the Board remanded this matter for additional development.  Also at that time, the Board referred the matter of a higher rating for bilateral hearing loss to the RO for appropriate action.  In response the RO erroneously issued an August 2015 supplemental statement of the case; however, as this matter was not on appeal, this new issue needed to first be adjudicated in a rating decision and as such, this matter is again referred to the RO for appropriate action.  

In an August 2015 rating decision, entitlement to a TDIU was granted, effective November 15, 2012.  As that award did not represent a total grant of benefits sought on appeal, the claim for a TDIU prior to November 15, 2102 remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).


FINDINGS OF FACT

Resolving reasonable doubt in the Veteran's favor, he was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities prior to November 15, 2012. 




CONCLUSION OF LAW

Prior to November 15, 2012, the criteria for entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) were met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19(2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017).  Given the favorable disposition of the Veteran's claim for entitlement to a TDIU, the Board finds that all notification and development action needed to fairly adjudicate this claim have been accomplished.

Analysis

It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16 (2017).  A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (a)(1), 4.15 (2017).

TDIU 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 C.F.R. § 3.340, 3.341, 4.16(a) (2017). 

Prior to November 15, 2012, service connection was in effect for posttraumatic stress disorder (PTSD), rated 50 percent, and bilateral hearing loss, rated 10 percent disabling, and tinnitus, rated 10 percent disabling. The combined service-connected disability rating was 60 percent.  Thus, prior to November 15, 2012, while the Veteran had a single disability rated 50 percent, his combined service-connected disability rating was less than 70 percent. 38 C.F.R. § 4.25  (2017).  Therefore, he did not meet the percentage requirements of 38 C.F.R. § 4.16 (a) (2017). Nevertheless, it is VA's established policy that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation and Pension Service, for consideration of the assignment of TDIU. 38 C.F.R. § 4.16 (b) (2017).  Neither the RO nor the Board may assign TDIU pursuant to 38 C.F.R. § 4.16 (b) in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).

In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities.  38 C.F.R. § 3.341 , 4.16(a), 4.19 (2017); Faust v. West, 13 Vet. App. 342 (2000).  The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 4.1, 4.15, 4.16(a) (2017).  When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107 (2012).

In August 2015, the Director of Compensation Service evaluated the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16 (b). The Director concluded that that the totality of the evidence did not show that the Veteran was unemployable due to his service connected disabilities, to which the Director stated that the Veteran's PTSD was moderate, hearing loss was normal to moderately severe, and tinnitus was present.  See August 2015 Advisory Opinion.  The Director opined that there was no evidence that the Veteran's service connected disabilities precluded employment and so an extraschedular TDIU was not warranted prior to November 2012.

The Board can review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16 (b) and make an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). Thus, the remaining question is whether the Veteran's service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him prior to November 15, 2012.

The evidence shows that the Veteran has a ninth grade education and has worked in unskilled jobs.  In early 2011, the Veteran held three different jobs in a three month period, lasting only about a month in each job.  See June 2011 VA Form 21-8940.  All three jobs were essentially unskilled, labor-intensive jobs, likely involving minimal education or specialized training.  See id.  The Veteran worked as a laborer at an auto garage from January 2011 with termination in February 2011.  See June 2011 Employer Letters.  Thereafter, he worked as a laborer for a sole proprietor moving mobile homes from February 2011 with termination about a week later, and then as a gardener for a sole proprietor from March 2011 with termination in April 2011.  Id.  The Veteran was terminated from all these jobs for essentially the same reasons---memory impairments (generally, manifesting in an inability to remember employer instructions or an inability to concentrate), panic attacks, and hearing impairments.  See id.  The Veteran's last period of substantially gainful employment was April 2011.  The presence of these symptoms are bolstered by contemporaneous medical evidence.  

The record as a whole reflects that the Veteran has limited educational abilities.  His private provider reported that even though the Veteran has a 9th grade level education, he "has very limited reading abilities."  See September 2015 M.P.H.C. Record.  The record further reflects that the Veteran has limited job opportunities because following service the Veteran only held manual, unskilled labor jobs (e.g., driller, security watchman, and general laborer).  See June 2011 VA Form 21-8940.

VA treatment records reflected that the Veteran was experiencing PTSD symptoms, such as recurrent intrusive thoughts of traumatic experiences, flashbacks, irritability, hypervigilance, social isolation, and claustrophobia.  See March 2011 VA Mental Health Treatment Plan Note.

A September 2011 VA PTSD examination report reflects that the Veteran had increased irritability, struggled with not having patient and was "short," but not physically aggressive.  The Veteran was taking medication to manage situational anxiety and his PTSD symptoms.  He also had difficulty concentrating, sleep disturbances, chronic sleep impairment, depressed mood, anxiety, panic attacks, impaired short and long term memory, disturbances of motivation and mood, and obsessional rituals which interfered with routine activities.  

A September 2011 VA audiology examination report reflects that the Veteran's daughter reported to the examiner that the Veteran had been fired from several jobs recently due to his inability to hear instructions.  More specifically, he was fired from a gardening job in March or April of the current year.  The examiner found that functional limitation associated with the Veteran's hearing loss and tinnitus including difficulty understanding speech and that the Veteran would have difficulty communicating effectively in noisy work environments. 

The medical records and lay statements indicate that the severity of the Veteran's service connected disabilities had remained consistent and continued to preclude his ability to work in a traditional environment. That conclusion is the same whether the Veteran meets the scheduler criteria for a TDIU, such as in the period beginning on November 15, 2012, or whether he did not meet the criteria and consideration is provided for a TDIU on an extra-schedular basis.  Despite the negative opinion provided by the Director in August 2015, the Board finds that the overall evidence shows that the Veteran has consistently experienced severe functional impairment as a result of his service-connected PTSD, hearing loss, and tinnitus, and that caused him to not be able to secure or follow substantially gainful employment for the period prior to November 15, 2012.   

In light of the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities combined to prevent him from securing and following substantially gainful employment consistent with his education and occupational experience prior to November 15, 2012.  Therefore, resolving all reasonable doubt in the Veteran's favor, entitlement to a TDIU is granted prior to November 15, 2012, pursuant to 38 C.F.R. § 4.16 (b).  38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a TDIU prior to November 15, 2012, pursuant to 38 C.F.R. § 4.16(b),  is granted. 






____________________________________________
Lesley A. Rein 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs