Citation Nr: 18145674 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-24 818A DATE: October 29, 2018 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT During the period on appeal, the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969. This matter is on appeal from a June 2015 decision. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on May 2018. However, appeals that have already been activated by the Board are not eligible for RAMP processing. The issue of entitlement to TDIU was activated by the Board in February 2018, prior to the Veteran’s election for participation in RAMP. Accordingly, the Board will undertake appellate review of the case. TDIU The Veteran is seeking entitlement to a TDIU. Total disability ratings for compensation may be assigned where the Schedular rating is less than total and the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, it is the established policy of VA that all veterans who are unemployable by reason of service-connected disabilities be rated totally disabled, regardless of their combined Schedular rating. Therefore, the cases of unemployable veterans are submitted to the Director, Compensation and Pension Service, for consideration of extraschedular TDIU when they do not also meet the Schedular threshold. 38 C.F.R. § 4.16(b). For the period on appeal, the Veteran’s service-connected disabilities include posttraumatic stress disorder (PTSD), rated as 50 percent disabling prior to February 11, 2016 and 70 percent thereafter; mechanical low back pain, rated as 20 percent disabling; residuals of right ankle fracture, rated as 10 percent disabling; degenerative joint disease (DJD) of the right knee, rated as 10 percent disabling; DJD right hip, rated as 10 percent disabling; DJD left hip, rated as 10 percent disabling; DJD left knee, rated as 10 percent disabling; shrapnel wound, right calf, rated as 10 percent disabling from September 7, 2016; right calf painful scar, rated as 10 percent disabling from September 7, 2016; right eyebrow scar fragment, rated as 0 percent disabling; and bilateral calf scar fragment, rated as 0 percent disabling. The Veteran meets the schedular criteria for a TDIU for the period on appeal to the extent that he had one service-connected disability that was rated as 40 percent disabling and a combined disabling rating of 80 percent prior to February 11, 2016, and 90 percent from that date. 38 C.F.R. § 4.16. In his August 2014 VA Form 8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked full-time in June 2008 and became too disabled to work in June 2008, due to his service-connected leg and hip disabilities. He indicated that he last worked as a letter carrier for the U.S. Postal Service and obtained a college and Master’s degree. The Veteran also indicated that he left his last job due to his disability. The Veteran’s wife stated in a January 2015 letter that the Veteran’s pain made him unable to finish his usual delivery route in the normal amount of time, and was getting harassment from supervisors for coming back late. He became depressed about being called in, checked up on, and written up, and had problems sleeping. He finally gave up and had to retire. She also indicated that the Veteran had a Master’s degree in social work and had worked for 18 years prior to going to the post office. While she had suggested he consider returning to this field, the Veteran resisted due to his PTSD concerns, as being around Veterans caused him sleep problems and nightmares. A March 2015 letter from the Veteran’s supervisor indicated that the Veteran dealt with issues that prohibited him from fulfilling all of the tasks required by the job. He had to eventually go on a restricted schedule for several years before his eventual retirement. A May 2015 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits completed by the U.S. Postal Service indicates that the Veteran worked from March 1984 to June 2008 as a letter carrier. The reason for termination of employment was listed as retirement, and it was noted that the Veteran was receiving pension benefits. A May 2015 VA ankle, hip, and knee examiner stated that the Veteran’s ankle disabilities, hip disabilities, and knee disabilities impacted his ability to perform any occupational task. Regarding the ankles, the Veteran had a limited ability to perform prolonged standing and walking and limited standing and walking to 30 minutes. Regarding the hips, the Veteran had limited ability to bend, lift, and twist. Regarding the knees, the Veteran had limited ability to kneel and squat. The examiner then indicated that the Veteran had restrictions of employability, as he would not be able to perform strenuous physical labor due to his knee, hip, and ankle disabilities. The examiner did indicate that the Veteran would be employable at a sedentary job sitting 15 to 30 minutes at a time, moving his arms at desk level, moving papers, and answering phones. He would then have to reposition himself. During February 2016 VA psychiatric treatment, it was noted that the Veteran retired from the U.S. Postal Service after 24 years because he could no longer tolerate being around people and his PTSD would increase his stress. Working was a challenge even when he was stable. The VA treating provider indicated that he doubted the Veteran’s ability to work at his former job as a postal worker or in any capacity. A June 2016 VA PTSD examiner indicated that with regard to the Veteran’s PTSD, the level of occupational and social impairment consisted of occupational and social impairment with deficiencies in most areas, such as work, school family relations, judgment, thinking, and/or mood. The Veteran’s symptoms included depressed mood, anxiety, panic attacks, sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. A September 2016 VA muscle injuries examiner indicated that the Veteran’s service-connected right calf disability impacted his ability to work, causing pain and some pain with exercise. A September 2016 VA knee examiner indicated that the Veteran’s knee disabilities impacted his ability to perform any type of occupational task. The Veteran was a mail carrier and would be limping by the end of the day. He retired as soon as he could due to knee pain. The Board notes that the ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). In this case, the Board finds that for the period on appeal, an award of a TDIU is warranted. The evidence reflects that the Veteran’s service-connected residuals of right ankle fracture, DJD of the right knee, DJD right hip, DJD left hip, and DJD left knee, would clearly cause problems with physical employment. The Veteran spent almost 24 years working as a letter carrier for the U.S. Postal Service. The VA examiners have all indicated that walking and standing for periods of time would be problematic, and the May 2015 VA examiner stated that the Veteran had limited ability to kneel and squat. These limitations would clearly make physical employment, including as a letter carrier, difficult for the Veteran. In addition, it is questionable as to whether sedentary employment would be possible. While the May 2015 VA examiner did indicate that the Veteran would be employable at a sedentary job, it would be with great restrictions, including sitting 15 to 30 minutes at a time, moving his arms at desk level, and answering phones. The Veteran would also have to reposition himself to be comfortable. The February 2016 VA treating provider evaluated the Veteran’s PTSD and indicated that he doubted the Veteran’s ability to work at his former job as a postal worker or in any capacity. The June 2016 VA PTSD examiner indicated that the Veteran’s PTSD consisted of occupational and social impairment with deficiencies in most areas, such as work, school family relations, judgment, thinking, and/or mood. The Veteran’s symptoms included difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. These symptoms evidence the fact that the Veteran cannot work in environments where he is around other people. The Veteran’s wife also indicated that being around other veterans would negatively affect the Veteran, causing him sleep problems and nightmares. These types of symptoms do not lend themselves to the average work environment. Taken together, the limitations described by the VA examiners would make sedentary or office type of work difficult. Therefore, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran would be capable of sedentary employment. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board therefore finds that, after resolving reasonable doubt in the Veteran’s favor, the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities for the period on appeal. Accordingly, TDIU is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel