Citation Nr: 18141466 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-02 881 DATE: October 10, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to controlling regulations applicable to the payment of VA monetary benefits. FINDINGS OF FACT 1. Since receipt of the claim for a TDIU, service connection has been in effect for depressive disorder, rated 70 percent disabling, and for left ankle ankylosis with synovitis and traumatic arthrosis with posterior tibial insufficiency, rated 20 percent disabling. 2. The Veteran is unable to secure or follow a substantially gainful occupation consistent with his education including some college and usual occupation as a welder due to service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1989 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision. Entitlement to a TDIU due to service-connected disabilities The Veteran contends that his service-connected depressive disorder and left ankle disability preclude him from retaining substantially gainful employment consistent with his occupational history and education. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability 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); see also 38 C.F.R. §§ 3.340, 3.341. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran’s nonservice-connected disabilities on his ability to function. The Veteran’s claim for a TDIU was received on May 23, 2014. Effective since May 29, 2013, service connection has been in effect for depressive disorder (rated 70 percent disabling) and for left ankle ankylosis with synovitis and traumatic arthrosis with posterior tibial insufficiency (rated 20 percent disabling); his combined evaluation for compensation is 80 percent, effective May 29, 2013. The Veteran meets the threshold schedular criteria for entitlement to a TDIU pursuant to 38 C.F.R. 4.16(a). In his formal application for a TDIU received in May 2014, the Veteran reported that his depressive disorder prevented him from securing or following a substantially gainful occupation and it affected his full-time employment in May 2011. He indicated that he last worked full-time as a fitter for LeTourneau Technologies from 2007 to December 2009 when he became too disabled to work. He reported completing two years of college and denied having any other education or training either before or after he became too disabled to work. In August 2015 correspondence from the company formerly known as LeTourneau Technologies, a human resources assistant confirmed the Veteran had been employed for the company from November 2008 to June 2010 as a welder. By way of history, in August 1992 the Veteran sustained a left ankle subtalar dislocation, which was treated by closed reduction under sedation followed by a cast, splint, and physical therapy. A physician’s summary at separation examination in June 1993 noted the Veteran had recovered well from his subtalar dislocation, which was not considered disabling. A June 2009 private consultation report by J. Moriarity, M.D., reflects the Veteran presented with complaints of low back pain and tightness with left-sided paraspinous pain at the level of the iliac crest and pain occasionally radiating into the buttock and posterior thigh since an on-the-job injury earlier in the month. He reported doing well prior to this injury, having only some intermittent low back soreness after athletic activity. He indicated he was still working, but doing clean-up duty now. A lumbar spine MRI report from earlier that week showed mild multilevel spondylosis with slight multilevel broad-based disc bulges. In December 2009, the Veteran established medical care with a private physician, B. Torrey, M.D., with a chief complaint of low back pain with left leg pain and numbness from a June 2009 work-related injury. He reported a past medical history of dislocated left ankle. In February 2010, he established VA medical care. He reported having left ankle pain for the past one or two years associated with his ankle dislocation in service and indicated his current medications included hydrocodone and diazepam (Valium), which he was taking for a back injury he sustained at work. During a March 2010 VA examination to evaluate the Veteran’s left ankle disability, he stated that before he stopped working due to his on-the-job back injury, his left ankle had bothered him when he had to wear steel-toed boots at work, but he still had been able to perform his job duties. Service connection was initially granted for the left ankle disability in a June 2010 rating decision. During a July 2010 initial psychiatry consultation, the Veteran disclosed he had been depressed ever since his marital separation and subsequent divorce, but he had also received psychiatric counseling in 2003. He reported becoming “even more depressed since injuring his back and subsequently losing his job.” He indicated he was currently living with friends, but feared he would soon be homeless. A December 2010 podiatry note indicated that the Veteran ambulated appropriately with a cane in the contralateral hand, but his left ankle was still painful. In February 2011, the Veteran was afforded a VA examination in connection with a claim for nonservice-connected pension benefits. He described working on an oil rig and injuring his back in 2009 when pulling on cables. He used a single-prong cane in his left hand “to take weight off his low back.” The examiner observed the Veteran’s gait was impaired by low back discomfort. His “mood disorder [was] marked by feelings of helplessness due to his lack of employment and his insecure housing arrangements, a diminished appetite, insomnia, difficulty concentrating, and a general feeling of fatigue.” He was also afforded a VA spine examination the same month. He indicated his back pain was always present, his muscles tense up, and he could walk about 50 yards until his lumbar spine pain limited his walking. The examiner remarked that this symptom was repeatable and the Veteran also had radiating pain. The veteran used assistive devices for ambulation, including a walking cane, back brace, and left ankle brace. The examiner believed the Veteran was now unable to perform his usual occupation as a fitter on an off-shore oil rig due to his lumbar spine symptoms and his service-connected left ankle pain. A June 2011 VA examination report reflects the Veteran’s account of experiencing depression symptoms since approximately 1991 when he was serving during the Persian Gulf War. He reported working 12 to 15 jobs since separation from service in factory, shipping, custodial, and construction jobs, adding that he had not worked since December 2009 due to an on-the-job back injury. He disclosed a legal history that included spending two years in prison for selling marijuana and approximately five DUI arrests. The diagnosis included depression not otherwise specified (NOS), which the examiner attributed to the Veteran’s military service. During an August 2011 VA examination, the Veteran described having left ankle flare-ups two to three times per week; being unable to put pressure on his ankle, including by climbing ladders or steps; and being unable to wear steel-toe boots, stand for more than 10 to 15 minutes, or carry any weight due to using a cane. In February 2011, the Veteran filed a claim for disability benefits from the Social Security Administration (SSA). He identified his back disability, “arthritis in the ankles,” and depression as disabilities affecting his ability to work. He was afforded psychiatric examinations in July and August 2011. He reported he had graduated from high school, but had been suspended 10 to 15 times. He reported his employment history to include working at two distributions centers, working in construction, and working as a welder with his longest continuous employment lasting four years. He stated he had been fired six or seven times for not doing his work well enough, missing work, or making threats to coworkers and management. The diagnoses included depressive disorder and a provisional diagnosis of intermittent explosive disorder. One examiner summarized that the Veteran’s ability to perform routine and repetitive work-related tasks seemed doubtful and his ability to interact satisfactorily with others, including coworkers and supervisors, seemed poor. The SSA records include a May 2012 settlement agreement between the Veteran and his former employer regarding his June 2009 back injury. A January 2013 decision determined the Veteran was disabled for SSA purposes due to his low back disability with lumbar radiculopathy, his left ankle disability, depression with an intermittent explosive disorder, and other disabilities. A July 2012 VA examiner identified potential work-related limitation due to the Veteran’s left ankle disability to include extended periods of weight-bearing. An April 2014 VA examiner similarly concluded the Veteran had “marked impairment in ability to bear weight on his left ankle,” noting that the VA orthopedic clinic had recommended continued use of his ankle brace at all times except sleeping and showering and continued use of either crutches or his cane for ambulation. In April 2014, the Veteran was afforded an examination with a VA psychologist. He described his work history mostly as a welder or fitter and indicated he had worked at approximately seven full-time jobs since separation from service until 2007. He reported he had been “very difficult” and “difficult to get along with” on the job and that “lack of sleep prevented him from being able to hold positions.” Diagnostic testing suggested “severe depression.” The examiner cautioned that a “self-report assessment is not sufficient to use alone for diagnostic purposes.” The Veteran endorsed numerous symptoms, including sleep problems, irritability, poor appetite, fatigue, persistent sadness, anhedonia, depressed mood, anxiety, difficulty and inability to establish and maintain effective relationships, and difficulty adapting to stressful circumstances. The examiner concluded the Veteran’s depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. A March 2017 VA examination report documented similar reported symptoms and objective findings. A June 2014 VA mental health record noted the Veteran continued to struggle with “anger issues.” He also admitted he had not been taking his medications as prescribed. In a July 2014 addendum report, the April 2014 VA psychologist clarified that the Veteran had mild impairment from his depressive disorder with occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Board has considered the entire record, including the Veteran’s educational background and his occupational history as a welder or fitter, and finds that the evidence is at least evenly balanced as to whether the limitations due to his service-connected depressive disorder and left ankle disability preclude him from securing or following a substantially gainful occupation. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). On the one hand, the evidence confirms that the Veteran stopped working in 2009 due to an on-the-job back injury unrelated to his military service. The evidence also suggests that his employment difficulties may be related to his documented cannabis dependence, history of alcohol use disorder, and/or his legal history including numerous arrests and a period of incarceration. On the other hand, the evidence indicates the Veteran has a history of irritability and difficulty getting along with others; persistent anhedonia, sleep impairment, and depressed mood; and difficulty with any left ankle weight-bearing with recommended and consistent use of a cane or crutches throughout the appeal. (Continued on the next page)   In summary, considering the Veteran’s education including some college and his occupational history working in physically-demanding jobs, the Board resolves all reasonable doubt in favor of the Veteran and finds that his service-connected depressive disorder and left ankle disability result in his inability to obtain or maintain a substantially gainful occupation. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel