Citation Nr: 18143092 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 14-11 801 DATE: October 18, 2018 ORDER Entitlement to a total disability based on individual unemployability (TDIU) due to a service-connected disability prior to September 20, 2013 is granted, subject to the rules and regulations governing the award of monetary benefits. FINDING OF FACT Prior to September 20, 2013, the evidence is at least in equipoise as to whether the Veteran’s service-connected disability has rendered her unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Prior to September 20, 2013, the criteria for a TDIU are met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1991 to February 1994. In a June 2014 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 100 percent rating for PTSD, effective September 20, 2013. In light of this fact, the Board is cognizant that a TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total (100 percent). 38 C.F.R. § 4.16(a). The Board acknowledges, however, that assigning a total schedular rating does not in every instance render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). More specifically, the issue of TDIU is not moot when it could be granted for a disability other than the disability for which a 100 percent rating is in effect because there would be no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. Nevertheless, the Veteran has been granted a 100 percent scheduler rating for her service-connected psychiatric disability, alone, effective September 20, 2013. Furthermore, the facts demonstrate that any possible claim for a TDIU would be based solely on the Veteran’s psychiatric disability. Accordingly, the Board finds that the issue of entitlement to a TDIU from September 20, 2013 is indeed moot in this case. The only issue remaining on appeal is entitlement to a TDIU prior to September 20, 2013. Entitlement to a TDIU prior to September 20, 2013. 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 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). 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 a 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). 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 light of the applicable criteria, it appears that the Veteran met the threshold requirements for a TDIU for the period prior to September 20, 2013. Specifically, she was service-connected for a psychiatric disability, to include depressive disorder, bipolar disorder, and posttraumatic stress disorder (PTSD) (rated at 70 percent). Thus, as there was one disability rated at least 60 percent, the schedular requirements under 38 C.F.R. § 4.16(a) were met. The record indicates that the Veteran graduated high school and completed licensed practical nurse (LPN) training in 1985. See October 2013 VA Examination report. The Veteran reported that she last worked in 2000 at a retail job. She was awarded social security disability in 2001. After a thorough review of the record, the Board finds that, prior to September 20, 2013, the evidence is at least in equipoise as to whether the Veteran’s service-connected psychiatric disability rendered her unable to obtain and maintain any form of gainful employment. In pertinent part, the Veteran’s VA mental health treatment provider, who treated her since May 2011, indicated that she was unemployable based on a combination of factors, including depression, symptoms associated with posttraumatic stress disorder (PTSD), and ongoing poor social functioning. See February 2014 VA Unemployability Opinion. The VA examiner from June 2014 also indicated that the Veteran’s psychiatric disability, which included depressive disorder and PTSD, caused total occupational and social impairment. See June 2014 VA Examination report. The Board notes that, despite being dated after the time period in question, the February 2014 VA unemployability opinion and the June 2014 VA examination are, nevertheless, probative of whether the Veteran’s service-connected psychiatric disability resulted in disabling impairment prior to September 20, 2013. In this regard, the Board notes that the February 2014 opinion was based on psychiatric treatment from May 2011. Moreover, the June 2014 VA examiner’s opinion was based on the Veteran’s reports that since 2000 her depression prevented her from functioning in the workplace, in that, she had difficulties getting out of bed, no energy to bathe or clean-up, and thoughts of suicide on a monthly basis. Such evidence is highly pertinent to the current period on appeal. VA treatment records prior to September 20, 2013 document bouts of depression, where the Veteran was unable to get out of bed and suicidal thoughts brought on by stress. While the Board is not bound by Social Security Administration (SSA) disability determinations, it is telling that the Veteran was found disabled due to her psychiatric diagnoses. See December 2001 Disability Determination. Although the June 2011 and October 2013 VA examinations show that the Veteran was not unemployable to do her service connected psychiatric disability, these opinions do not reflect consideration of the effects of PTSD on the Veteran’s ability to work. Such consideration is necessary as her service-connected psychiatric disability, includes her diagnosis for PTSD. See August 2011 Rating Decision. Accordingly, the Board finds that the July 2011 and October 2013 VA examinations are not probative of whether the Veteran was able to work as a result of her service-connected psychiatric disability prior to September 20, 2013. In light of the probative evidence of record, the Board finds that, prior to September 20, 2013, the evidence is at least in equipoise as to whether the Veteran’s service-connected psychiatric disability rendered her unable to secure or (CONTINUED ON NEXT PAGE) follow a substantially gainful occupation. Accordingly, the Board finds that entitlement to a TDIU is warranted for the period prior to September 20, 2013. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel