Citation Nr: 18141110 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 13-10 917 DATE: October 9, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU), prior to August 17, 2016, and from December 1, 2016, to February 28, 2017, is granted. FINDING OF FACT For the period prior to August 17, 2016, and from December 1, 2016, to February 28, 2017, the Veteran’s service-connected PTSD, diabetes mellitus with cataracts, and bilateral hearing loss rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met prior to August 17, 2016, and from December 1, 2016, to February 28, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to March 1974. He is the recipient of numerous awards and decorations, including the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg Florida. A Notice of Disagreement was submitted in July 2011; a Statement of the Case was issued in February 2013; and a VA Form 9 was received in February 2016. The Veteran testified before the undersigned Veterans Law Judge in October 2016; a transcript of the hearing is of record. In a February 2017 decision, the Board denied entitlement to a total disability rating based upon individual unemployability (TDIU). The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In March 2018, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the portion of the decision that denied the TDIU claim, and returned it to the Board for further consideration consistent with the JMPR. TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. His claim for a TDIU was received in May 2010. At that time, he indicated that he was unemployable as a result of his service-connected disabilities, to specifically include diabetes mellitus (to include service-connected residuals thereof), PTSD, and polyuria. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). The Veteran is service-connected for the has the following disabilities: PTSD, rated as 30 percent disabling effective December 1, 2008, 50 percent disabling effective June 27, 2011, and 100 percent disabling effective February 28, 2017; coronary artery disease, rated as 100 percent disabling effective August 17, 2016, 10 percent disabling effective December 1, 2016, and 100 percent disabling effective February 28, 2017; polyuria associated with diabetes mellitus with cataracts and erectile dysfunction, rated as 30 percent disabling effective July 20, 2006; sensorineural hearing loss rated as 20 percent disabling effective March 16, 1974; diabetes mellitus type II with cataracts and erectile dysfunction rated as 10 percent disabling effective October 26, 2004 and 20 percent disabling effective March 2, 2006; peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus type II with cataracts and erectile dysfunction rated as 10 percent disabling effective July 20, 2006 and 20 percent disabling August 18, 2015; tinnitus rated as 10 percent disabling effective June 7, 2005; and post-operative umbilical hernia scar rated as noncompensable. As an initial matter, the assignment of the Veteran’s 100 percent schedular evaluation for CAD from August 17, 2016, to December 1, 2016, and for PTSD since February 28, 2017, renders the TDIU claim moot during these periods because he has also been granted awards of SMC based on the fact that he has a total schedular rating and additional service-connected disabilities independently ratable as 60 percent disabling. See August 216 and May 2017 Rating Decisions. Therefore, the Veteran’s benefits have already been maximized. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Under such circumstances, the claim for TDIU is moot during the above stated time periods. With respect to the period prior to August 17, 2016, and from December 1, 2016, to February 28, 2017, the Veteran has met the schedular criteria for these time periods, and thus, his claim turns on whether his service-connected disabilities have rendered him unemployable. Here, the record reflects that the Veteran has a high school education; he has been variously employed as a pipefitter and a restaurant manager since his separation from service in the 1970’s. A May 2010 statement from the Veteran’s VA vocational rehabilitation counselor indicated that he completed an academic training program in Human Services in December of 2009. The Veteran’s counselor also reported that since the Veteran’s induction in the program in October 2004, his eyesight had gotten progressively worse and, as a result, he considered volunteer work rather than paid employment. He has not been gainfully employed since approximately 2005-2006. Several VA examinations have been conducted over the years which illustrate the impact of the Veteran’s service connected conditions on his ability to work. VA Audio examinations conducted in September 2010 and July 2012 indicated that the Veteran would have difficulty working in a place with background noise or where the speaker was not facing him due to his moderate to severe hearing loss. November 2010 and November 2011 VA examiners opined that the Veteran’s service connected disabilities limited him to sedentary work. During an August 2011 VA PTSD examination, the examiner found that the Veteran’s PTSD did impact his ability to work, finding that the Veteran’s functional impairment was occupational and social impairment with reduced reliability and productivity. A November 2011 VA examiner opined that his diabetes (and residuals thereof) limited him to desk/computer work. A July 2012 VA Eye examination found that the Veteran’s service-connected mature cataract, particularly the right, was advanced and responsible for significant vision loss. In a May 2015 letter, the Veteran’s wife reported that he was constantly depressed, talked frequently of suicide, and feared leaving the house due to his PTSD. She also stated that she had to do everything for him in terms of his grooming and hygiene. An October 2016 statement from the Veteran’s son reflects his observations of the Veteran’s PTSD. The Veteran’s son indicated that his father did not sleep well and suffered from flashbacks. He reported that his parents did not have many friends and that he had to be always mindful of his father and the house rules. He reported that his father retreated during social situations. During the October 2016 hearing, the Veteran testified that he last worked full time in approximately 2005. He testified that he managed a fast food franchise, where he supervised approximately 25 employees and was responsible for the cash register, ordering supplies and ensuring orders were prepared correctly. The Veteran indicated that he decided he could no longer work as he lost his eyesight and could no longer handle the job, he could not concentrate, manage his employees, or manage the finances of the restaurant. He testified that he continued to try to find employment and worked as a dishwasher in an Italian restaurant but that he kept getting hurt and burnt. He reported that he then went through a bout of depression and decided to try to get additional training, but that he left the vocational rehabilitation program in April 2010. The Veteran testified that his driver’s license was subsequently taken away. He indicated that he tried to work for a pizza restaurant but that he could not handle the pressure or the crowds and that he suffered panic attacks as a result. The Veteran testified to a couple of confrontations in crowded places and he indicated that he could not control himself and feared that he would hurt someone as a result. The Veteran’s wife testified that the Veteran’s PTSD caused him to have nightmares and panic attacks in his sleep. She further testified that if his diabetes mellitus was not under control then he was prone to passing out and forgetting things. Further she testified that as a result of all the medications that he was on, he was often dizzy, groggy and sleepy. She testified that as a result of all of his service connected conditions and their various medications with their physical and mental side effects, the Veteran was not in a position where he could work outside of his home. In November 2016 statements from the Veteran’s previous employers were also submitted. A statement from the manager of an Italian restaurant where the Veteran applied for a part time position, noted that while the job could become stressful and overwhelming due to the location, it was common practice to have potential employees do a couple voluntary days of training. During the Veteran’s probationary period, he became overwhelmed and had to be excused. He tried to return but was unable to. The Veteran reported that he suffered from PTSD and often suffered from panic attacks. As a result, the restaurant could not go forward with his employment. An additional statement from a current employer noted that the Veteran worked part time with a bathroom remodeling and home improvement company. The Veteran notified his manager of his PTSD and panic attacks during the hiring process. His manager noted that the Veteran had several panic attacks due to noise and crowds and had to leave work. In light of the Veteran’s education and post-service work history; the statements provided by former employers concerning his PTSD symptoms and their impact on his employment; the competent and credible statements and testimony provided by the Veteran, his wife, and his son addressing his PTSD symptoms and resulting social/occupational impairments; the VA Eye examination showing significant loss of vision in the right eye as a result of his diabetic cataract; and the VA Audio examination noting difficulty working in settings where the speaker was not facing (Continued on next page) him, the Board finds that the overall severity of the Veteran’s psychiatric, diabetic (including cataracts and resulting visual impairment), and hearing loss symptomatology, prevents him from securing or following a substantially gainful occupation consistent with his occupational experience. Hence, a TDIU is warranted for the prior to August 17, 2016, and from December 1, 2016, to February 28, 2017. 38 U.S.C. §§ 1155, 5107(b). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel