Citation Nr: 18142953 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-20 699 DATE: October 17, 2018 ORDER A total disability rating based on individual unemployability (TDIU) is granted. An initial rating in excess of 70 percent for an acquired psychiatric disorder, characterized as posttraumatic-stress disorder (PTSD), is dismissed without prejudice. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities prevented him from obtaining and retaining substantially gainful employment. 2. In his May 2016 substantive appeal, the Veteran indicated that a grant of TDIU would satisfy his entire appeal in full. CONCLUSIONS OF LAW 1. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The appeal with respect to the claim of entitlement to an increased rating for an acquired psychiatric disorder, characterized as PTSD, is dismissed due to the absence of a controversy at issue. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to November 1981. TDIU 1. Entitlement to TDIU In a November 2013 TDIU claim, the Veteran has asserted that he has been unable to work because of his service-connected disabilities. Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or 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. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Board determines that TDIU should be granted. As an initial matter, the Board notes that the Veteran meets the schedular requirements for TDIU. Specifically, the Veteran is service-connected for PTSD (70 percent), gastric ulcer disease (40 percent), esophagitis (30 percent), and has noncompensable ratings for hemorrhoids and scars. As such, the Veteran’s combined disability rating is 90 percent during the period on appeal. Next, the evidence demonstrates that the Veteran was unable to obtain gainful employment. In making this determination, the Board places significant probative value on the credible assertions from the Veteran that his service-connected disabilities caused severe irritability, depression, anxiety, memory issues, concentration difficulties, as well as significant physical limitations from his gastrointestinal and esophageal disabilities, which all together, prevent him from working, to include performing his prior duties as a scuba diver/scuba equipment repairer and working at a gun shop. Further, the medical evidence, including the private and VA treatment records from February 2012, September 2014, and June 2016, reflects that the Veteran’s psychiatric disability causes significant irritability and sleeping difficulties that interfere with his ability to obtain and retain substantial gainful employment. Of note, in a June 2016 opinion, the Veteran’s treating medical provider indicates that the Veteran has significant impairment with his ability to establish and maintain social and occupation relationship that is due, in large part, to his uncontrollable anger. Similarly, the January 2012 and October 2014 VA examiners opined that the Veteran’s psychiatric symptoms cause occupational impairment with deficiencies in most areas due to symptoms such as depression, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, memory loss, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or worklike setting, and inability to establish and maintain effective relationships. The Board also notes that the October 2014 VA examiner stated that the Veteran “is on a large number of psychotropic medications” that are required to treat his significant psychiatric symptoms. Additionally, while the negative evidence includes the opinions from the October 2014 VA examiner that states the Veteran’s psychiatric disorder alone does render him unemployable, the Board notes that the Veteran has unsuccessfully attempted to work various jobs, and was in fact fired from his last job due to anger issues caused by his psychiatric disorder. Further, the VA examiner failed to consider the impact of the Veteran’s other service-connected disabilities - which also cause interference with his ability to work. Moreover, the VA examiner failed to consider the Veteran’s level of education (less than two years of college without a degree) and his prior work history. The Board also notes that while the Veteran volunteers as a representative for a veterans’ service organization, this does not constitute substantial gainful activity. Again, the question in this case is whether the Veteran could secure or follow substantially gainful employment, not whether he was totally precluded from work. Therefore, the Board finds that the clinical evidence in conjunction with the Veteran’s credible statements, places the question of substantially gainful employment in great doubt, and the Board has resolved all doubt in the Veteran’s favor. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Accordingly, entitlement to TDIU is granted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).   Increased Ratings 2. Entitlement to an initial rating in excess of 70 percent for an acquired psychiatric disorder, characterized as PTSD With respect to the issue of entitlement to an increased rating for PTSD, the Board observes that, in his May 2016 substantive appeal, the Veteran stated that “I have requested that my disability level assigned [for PTSD] is upgraded … or that TDIU benefit is granted” (emphasis added). The Board construes this statement as an indication that an award of TDIU would satisfy his appeal in full. Here, the Board has granted TDIU which, based on his statements, is a full grant of the benefits requested by the Veteran. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). As such, there is no longer an issue in controversy, and a dismissal of this issue is appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 20.101, 20.202. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel