Citation Nr: 18141746 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-31 774 DATE: October 11, 2018 ORDER An award of a TDIU is warranted, subject to the law and regulations governing payment of monetary benefits. FINDING OF FACT The Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to January 1971 and from August 1974 to September 1976. This matter came before the Board of Veterans Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s September 2014 Notice of Disagreement included the issue of an increased rating for retinopathy. However, when the Veteran filed his May 2016 Formal Appeal, he limited his appeal to the issue of entitlement to TDIU. The issue of an increased rating for retinopathy is therefore not before the Board. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that he is unable to work due to the combined effects of his service-connected PTSD and physical disabilities. The Board concludes that the Veteran meets the schedular threshold for TDIU and that his service-connected disabilities render him unable to secure and maintain substantially gainful employment. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). TDIU 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 due to service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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 U.S.C. § 1155; 38 C.F.R. § 4.16(a). The Veteran currently has a 70 percent rating for PTSD and a combined disability rating of 90 percent. The schedular threshold for TDIU is therefore met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). The Board will therefore consider whether the Veteran’s service-connected disabilities alone render him unable to secure and maintain substantially gainful employment. VA may consider the Veteran’s level of education, special training, and previous work experience in making this determination, but may not consider age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). A February 2014 diabetes and peripheral neuropathy examination found that the Veteran had functional impairments due to his neuropathy. The examiner found that due to neuropathy, the Veteran was unable to work with small precision tools, needed to avoid extreme temperatures, could not operate heavy machinery and could not work in heights. The examiner found that the Veteran’s upper and lower extremity neuropathy would limit him to light physical work. A February 2014 VA examination found that the Veteran met the criteria for PTSD and had significant problems with rage and anger as well as heightened anxiety, avoidance behavior and negative alterations in mood and cognition. The examiner opined that the Veteran was unemployable due to PTSD. As a rationale, the examiner stated that the Veteran’s anger and rage would cause problems dealing with peers, supervisors and the public in a reasonable manner and that he had trouble coping with others for any length of time and would be unable to be persistent across an 8-hour day or 40-hour work week. The examiner also opined that the Veteran would constitute a safety hazard in the workplace due to his problems controlling his anger. In addition, the examiner noted that the Veteran had problems dealing with change as it heightened his anxiety, had difficulty with time pressure and would struggle with multiple tasks due to his concentration problems. Based upon these observations, the examiner concluded that the Veteran’s PTSD made him unemployable. A June 2014 VA PTSD examination found that the Veteran had occupational and social impairment with deficiencies in most areas due to his PTSD and noted symptoms of depression, anxiety, panic attacks occurring more than once per week, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stress (including work-related environments). The examiner opined that the Veteran “may be unemployable” due to physical illness, but not due to his PTSD. A June 2014 VA eye examination found that the Veteran had mild fluctuations in vision but that his diabetic retinopathy did not have an impact upon his ability to work. The examiner found that the Veteran had no incapacitating episodes due to his retinopathy in the prior year. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds they are entitled to significant probative weight with respect to the severity of the Veteran’s service-connected disabilities at the time of the examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). Upon review, the Board finds that preponderance of evidence shows that the Veteran’s service-connected disabilities alone, prevent him from obtaining and maintaining substantially gainful employment. The February 2014 VA examiner found that the Veteran’s lower and upper extremity bilateral peripheral neuropathy would limit him from all but light physical work, noting his inability to do precision work with his hands and operate heavy equipment. In addition to these physical limitations, the February 2014 psychiatric examiner found that the Veteran’s PTSD rendered him totally unemployable, making specific findings about the Veteran’s anger and rage and his inability to behave in a reasonable manner with peers, supervisors and the public across a full work day. Significantly, the examiner found that the Veteran’s anger would make him a safety hazard in the workplace. The examiner also noted problems with concentration, time pressure and anxiety on top of the anger-related impairments. The Board finds that these psychiatric symptoms, particularly anger and rage so pronounced as to constitute a safety hazard in the workplace, combined with the Veteran’s physical limitations, render him unemployable. The Board acknowledges that the June 2014 VA examiner found that the Veteran’s PTSD did not render him unemployable. However, the Board notes that the examiner did not provide a rationale for this finding, and gives more weight to the opinion of the February 2014 examiner as it had a clear rationale connecting the Veteran’s psychiatric symptoms to specific occupational limitations. Further, while the June 2014 examiner did not find that the Veteran’s PTSD made him unemployable, the examination report indicates that the Veteran’s symptoms had increased in severity since the February 2014 examination. In addition to the symptoms noted by the February 2014 examiner, the June 2014 examiner found that the Veteran had panic attacks more than once a week. The examiner also opined that the Veteran’s symptoms were sufficiently severe to constitute occupational and social impairment in most areas. The Board also notes that the June 2014 examiner’s opinion was limited to finding the Veteran not unemployable due to PTSD alone, and that the examiner stated that the Veteran’s physical disabilities “may” render him unemployable, which is not inconsistent with the Board’s finding that the combined impacts of the Veteran’s service-connected physical and psychiatric disabilities render him unable to work. The preponderance of the evidence therefore indicates that the Veteran’s service-connected disabilities render him unable to secure and maintain substantial gainful employment. As such, the Board concludes that TDIU is warranted under 38 C.F.R. § 4.16(a). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel