Citation Nr: 18145134 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 14-38 933 DATE: October 26, 2018 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with anxiety, agoraphobia, and depression is remanded. FINDING OF FACT For the entire appeal period stemming from the Veteran’s September 2012 claim, and by resolving all doubt in her favor, her service-connected PTSD with anxiety, agoraphobia, and depression rendered her unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to February 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to a TDIU. The Veteran contends that she is unable to maintain substantially gainful employment due to her service-connected PTSD with anxiety, agoraphobia, and depression for the entire appeal period stemming from her September 2012 claim. Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App.447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As an initial matter, the Board notes that the Veteran meets the schedular threshold for consideration of a TDIU as her service-connected PTSD with anxiety, agoraphobia, and depression is assigned a 70 percent rating and her tinnitus is assigned a 10 percent rating, thereby resulting in a combined disability rating of 70 percent, for the entire appeal period stemming from her September 2012 claim. In this regard, the Board notes that the Veteran does not allege, nor does the record reflect, that she is unable to maintain substantially gainful employment due to her tinnitus. Furthermore, upon review of the evidence, the Board finds that, after resolving all doubt in the Veteran’s favor, her service-connected PTSD with anxiety, agoraphobia, and depression rendered her unable to secure or follow a substantially gainful occupation for the entire appeal period. In this regard, the Veteran reported in her December 2015 Application for Increased Compensation Based on Unemployability (Application), that she was last employed as a social worker supervisor from February 2010 to August 2010 for the State of Washington, but was let go during her probationary period because she could not get along with supervisors or staff, and had too many absences. She also reported prior work experience as a business manager and had attained a Master’s degree. The Board notes there is no evidence of record that indicates that the Veteran has had employment after August 2010. Moreover, the Veteran’s Social Security Administration (SSA) records reflected that she was awarded disability benefits in March 2013 based, in part, on her PTSD and was unable to perform any past relevant work experiences, including as a social worker. Additionally, such records revealed that a psychologist determined that the Veteran could not be involved in any type of stressful interpersonal contact or noisy environments, which might set off her PTSD symptoms. In January 2014, the Veteran was afforded a VA examination, at which time the examiner determined that her PTSD with anxiety, agoraphobia, and depression resulted in occupational and social impairment with reduced reliability and productivity. However, the Veteran reported difficulty with mental focus and concentration, and indicated that she had completely withdrawn from leaving her house. The examiner also noted that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting, due to her PTSD. Moreover, in a June 2014 statement, the Veteran stated that, if she had to go out, she still felt very fearful and tried to avoid any confrontation. She also stated that she often overreacted to any type of disagreement by yelling or screaming. Additionally, in a February 2015 statement, the Veteran stated that she had problems getting along with supervisors and staff at her social work supervisor job, and indicated that such problems started before her physical illnesses. Furthermore, in June 2016, the Veteran was afforded another VA examination, at which time the examiner found that her PTSD with anxiety, agoraphobia, and depression resulted in 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. However, an August 2016 opinion was received from J.S., a licensed psychologist, who opined that, based upon results of an examination and review of the records, the Veteran’s PTSD symptoms with agoraphobia had precluded her from substantial gainful employment since 2010. In support thereof, J.S. explained that the Veteran had difficulty relating to others, was confrontational, and struggled in work settings. She also noted that the Veteran had been homebound due to high levels of anxiety and required in-home health care due to poor attendance secondary to suffering panic attacks when she left her home. Thus, J.S. found that the Veteran’s psychological symptoms would clearly impact her ability to sustain sufficient attention, concentration, and pace for work-related activities, relate in a predictable manner, maintain a regular work schedule, and manage work stress. Therefore, based on a review of the foregoing evidence, the Board concludes that the Veteran is entitled to a TDIU for the entire appeal period stemming from her September 2012 claim. In this regard, the record reflects that her service-connected PTSD with anxiety, agoraphobia, and depression hindered her ability to function in a work setting. Thus, resolving all doubt in the Veteran’s favor, the Board finds that the requirements for a TDIU are met for the entire appeal period. REASONS FOR REMAND 2. Entitlement to a rating in excess of 70 percent for PTSD with anxiety, agoraphobia, and depression. The Board finds that a remand is necessary to obtain potential missing treatment records. In this regard, at the August 2017 Board hearing, the Veteran stated that a psychologist came to her house every other week for treatment through VA. Further, while the Agency of Original Jurisdiction (AOJ) noted that it reviewed the Veteran’s VA treatment records from April 2015 to June 2016 in its adjudication of the Veteran’s claims on appeal, there are no VA treatment records associated with the Veteran’s claims file since October 2013. Thus, a remand is necessary to obtain such records. The matter is REMANDED for the following action: Obtain all outstanding VA treatment records dated from October 2013 to present. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159 (e). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel