Citation Nr: 18143471 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-27 647 DATE: October 19, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to July 1982. Legal Criteria A schedular TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities that are of a certain combined disability rating. See 38 C.F.R. § 4.16(a). The Veteran has been assigned an 80 percent combined disability rating since June 4, 2012. He has been assigned a 70 percent disability rating since June 4, 2012 for mood disorder; a 20 percent disability rating since August 1, 2011 for residuals, left shoulder dislocation (herein left shoulder disability); a 10 percent disability rating since April 24, 2001 for tinnitus; and 0 percent (noncompensable) disability ratings since September 10, 1997 for residuals, right ankle fracture and bilateral hearing loss. As such, he has met the schedular criteria for a TDIU since June 4, 2012, as his combined disability rating has been 70 percent or more and his mood disorder has been rated at 40 percent or more. See 38 C.F.R. § 4.16(a). Analysis Upon review, the evidence of record indicated that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran submitted a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) on October 21, 2013. The Veteran reported that he last worked full time in July 1997. In a September 2013 VA examination, the Veteran reported that he had previous work experience managing a movie theater and a market. He noted that the service-connected disabilities that prevented him from securing or following any substantially gainful activity were “bilateral shoulders” (he was and is only service-connected for a left shoulder disability) and “mental health.” The Veteran listed employment from 1991 to 1997 as a machine operator. He reported having four years of high school education. Other evidence of record indicated that the Veteran did not complete high school and had not obtained a GED. See February 2013 VA Mental Health Note (stating that the Veteran “[q]uit [high school] in 12th grade, never obtained a GED”). The Veteran’s representative, however, stated in his October 2017 brief that the Veteran “is a high school graduate.” Social Security Administration (SSA) records indicated that the Veteran was determined to be disabled from July 1997 due to a back disability. As noted, the Veteran referenced on his October 2013 VA Form 21-8940 that his left shoulder disability and mood disorder were the service-connected disabilities that prevented him from securing or following any substantially gainful activity. The Veteran’s representative stated in the October 2017 brief that “[d]ue to the severity [of] his mood disorder and disabling left shoulder dislocation [the Veteran] is incapable of securing or maintaining a substantially gainful occupation. Accordingly, [the Veteran] respectfully requests that the Board grant his entitlement to [TD]IU.” Based on the Veteran and his representative’s contentions, the Board will focus on the Veteran’s mood disorder and left shoulder disability. With respect to the Veteran’s mood disorder, the Veteran was afforded a VA examination in September 2013 and a Mental Disorders Disability Benefits Questionnaire (DBQ) was completed by psychologist K.G. The DBQ noted symptoms of depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; impaired impulse control, such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. It was noted that the Veteran’s level of occupational and social impairment with regards to all mental diagnoses was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Following this examination, in a September 2013 rating decision the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for a mood disorder and assigned a 70 percent disability rating. The Veteran was afforded another VA examination in July 2014 and a Mental Disorders DBQ was completed by psychologist C.M. The DBQ noted symptoms of depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. Other symptoms noted were irritability and homicidal ideation (noted was that “he has felt like killing” an individual but that he “denied that he would carry through”). It was noted that the Veteran’s level of occupational and social impairment with regards to all mental diagnoses was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. What was labeled as a TDIU statement stated that “[c]linical experience indicates that veterans with moderate levels of depression experience some reduced productivity in work environments due to low energy and difficulty concentrating. However, these impairments may be remedied with reasonable accommodations per federal guidelines.” Following this examination, in an August 2014 rating decision the AOJ continued the assigned 70 percent disability rating for the Veteran’s mood disorder. The Veteran was afforded another VA examination in February 2016 and a Mental Disorders DBQ was completed by psychiatrist A.R. The DBQ noted symptoms of depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; impaired impulse control, such as unprovoked irritability with periods of violence; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Also noted was “episodic non-intentional suicidal ideation with no suicidal or homicidal impulses, gestures, plans or intent.” It was noted that the Veteran’s level of occupational and social impairment with regards to all mental diagnoses was occupational and social impairment with reduced reliability and productivity. Following this examination, in a March 2016 rating decision the AOJ continued the assigned 70 percent disability rating for the Veteran’s mood disorder. With the representative’s October 2017 brief, submitted were a Vocational Assessment and a Vocational Evaluation. The assessments referred to record reviews but not in-person examinations. The Vocational Assessment was completed by J.S., noted to be a Vocational Rehabilitation Counselor/Consultant with a Master’s Degree in counseling and a Licensed Professional Counselor and Certified Rehabilitation Counselor. J.S. provided a multipage assessment regarding the Veteran and it was noted that the Veteran’s claims file was reviewed. J.S. extensively outlined a variety of medical evidence in the assessment and also referenced the Veteran’s employment history. The provided opinion stated in part that the Veteran’s “chronic left shoulder pain and chronic functional limitation would affect[] his ability to perform even an unskilled occupation as unskilled work of any type requires unrestricted use of the upper extremities on a frequent to constant basis.” J.S. also stated that the Veteran’s “ability to perform any substantial gainful occupation is further impacted by his severe psychiatric, emotional and behavioral functional difficulties resultant of his service-connected Mood Disorder.” J.S. referenced the July 2014 DBQ, which had referenced that “impairments may be remedied with reasonable accommodations per federal guidelines,” and stated that “[u]pon review of the examiner’s recommendations and my 35 years of experience as vocational rehabilitation expert it is my opinion that [the Veteran’s] level of severe depressive and behavioral symptoms would not be accommodated by any employer within the general labor market.” J.S. further stated that “it is my opinion that [the Veteran’s] service-connected conditions ‘at least as likely as not’ have resulted in his entitlement to a 100% rating for [TDIU] as of at least 2009.” The Vocational Evaluation was completed by C.Y., noted to be a Vocational Expert with a Master’s Degree in rehabilitation counseling and a Professional Counselor and Certified Rehabilitation Counselor. C.Y. provided a multiple assessment regarding the Veteran and it was noted that the Veteran’s claims file was reviewed and that the Veteran was interviewed in July 2017. C.Y. extensively outlined a variety of medical evidence in the assessment and also referenced the Veteran’s employment history. Regarding employment, it was referenced that the Veteran worked as a machine operator and that the Veteran “has no skills that transfer to lighter employment, and his poor language skills and lack of a high school diploma substantially limit his chances for employment in the service area.” Regarding the Veteran’s left shoulder disability, it was stated that “[h]e has had operations to his left shoulder which have left him in pain, and unable to use his left hand for any extend period; thus making tasks requiring bilateral manual dexterity impossible. H[is] pain is aggravated by physical activity.” Regarding the Veteran’s mood disorder, C.Y. referenced various symptoms noted in the DBQs discussed above and stated that “[c]learly an individual with the above limitations would be unable to function in any employment situation, especially in the service or industrial arena that [the Veteran] is confined to because of his work history and limited education.” C.Y. further stated that “I have no hesitation in stating that, in my professional opinion, that it is as likely as not that [the Veteran] is unable to secure or follow a gainful occupation as a result of his service-connected disabilities. This condition has existed since at least 6/4/12” and that “[t]he symptoms documented in the folder and accepted by the V.A. make any work unfeasible for this [V]eteran and he is totally disabled, from both his service-connected disabilities as well as his lack of education. He has been in this condition since at least 6/4/12.” VA examiners and the vocational consultants noted that the Veteran was receiving regular physical and mental health treatment as an outpatient but did not refer to specific observations or the nature of the treatment. The Board reviewed about 1800 pages of these records and finds generally that the Veteran’s reported symptoms and shortcomings in function are similar to those noted in the examinations and vocational assessments albeit of a milder degree of severity. Of note is that the Veteran is able to use a computer but also uses pain medication that impairs concentration. Upon review, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. With respect to the Veteran’s mood disorder, the evidence indicated the presence of severe symptoms that would impact his ability to secure or follow a substantially gainful occupation. As noted, the AOJ found that a 70 percent disability rating was warranted for the Veteran’s psychiatric disability as of June 4, 2012 and the AOJ continued this disability rating in August 2014 and March 2016 rating decisions. The AOJ recognized the presence of severe symptoms related to the Veteran’s mood disorder. In this regard, the Veteran’s mood disorder was manifested by a variety of symptoms, to include the following that would have a significant impact on the Veteran’s ability to work: near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; disturbance in motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; difficulty in establishing and maintaining effective work and social relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. These symptoms would impact the Veteran’s ability to obtain and maintain employment, specifically in regard to the impact the symptoms would have on his ability to interact and work with other people, to act appropriately in a work place environment, to perform work related tasks for the duration of a typical work day or shift, and to deal with stress, which would all likely be necessary in any employment setting. Impairments in these areas would negatively impact the Veteran’s ability to work in essentially any employment setting. In addition, the Vocational Assessment and Vocational Evaluation, as quoted above, indicated that the Veteran’s left shoulder disability would also impact his ability to work. Further, the Vocational Assessment and Vocational Evaluation contained opinions that, essentially, considered the Veteran’s mood disorder and left shoulder disability and stated that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. These opinions were provided by individuals with experience and training in counseling and vocational rehabilitation. The opinions were provided after a review of the Veteran’s claims file, and in the case of C.Y.’s Vocational Evaluation, an interview with the Veteran. In addition, the opinions were extensive and rationales were included for the conclusions provided. Upon review, the Board affords these opinions significant probative value as to the issue of entitlement to a TDIU. Overall, when considering the collective impact of the Veteran’s service-connected physical and psychiatric disabilities (specifically the left should disability and the mood disorder), such disabilities result in the Veteran being unable to secure or follow a substantially gainful occupation. As such, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Accordingly, the Board concludes that the criteria for entitlement to a TDIU have been met and the Veteran’s claim is therefore granted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel