Citation Nr: 18145760 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-03 773A DATE: October 30, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT The Veteran’s PTSD causes memory loss, reduced reliability and productivity, severe sleep deprivation, irritability, difficulties in concentration, and deficiencies in interpersonal relations. This prevents the Veteran from being able to maintain or obtain sustainably gainful employment. CONCLUSIONS OF LAW The criteria for a TDIU rating have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veteran served honorably in the Army on active duty from April 1986 to May 1989 and May 2007 to June 2008 with service in both Kuwait and Iraq. Additional evidence in the form of an April 21, 2015 VA neurological examination and a February 11, 2015 letter from a VA psychologist treating the Veteran, were added to the evidence of record after the SOC was issued but prior to the case’s transfer to the board. When pertinent evidence is added to a claim after the issuance of a SOC but prior to the case’s transfer, the Board may remand the case to the VA Regional Office (RO) for the issuance of a second statement of the case (SSOC). See 38 C.F.R. §§ 19.31, 19.37(a). The Board in its discretion, however, has determined these administrative issues to be nonprejudicial and accordingly proceeds with the issuance of this decision. I. Factual Background Regarding the Veteran’s educational and employment history, VA records show that the Veteran has an Associate Degree in Information Technology and twenty years of occupational experience as a truck driver and mechanic. The Veteran reports through his application for increased compensation based on unemployability (VA-21-8940) that he has been unemployed since August 2012. He last worked part-time as a truck driver for Pepsi in August 2012 and full-time for Gulf Coast in December 2008. Since returning from Iraq, the Veteran has also served on Army Reserve duty with 41 days of drill in 2011; and 11 days of drill in 2012. The Veteran reported to a VA examiner that he was fired from his last full-time job for verbally threatening a coworker. Since separation in 2008, the Veteran has undergone several surgical procedures for a service-connected left ankle injury that have required extended convalescence periods for which he has received temporary 100 percent VA disability compensation. The multiple surgeries and recovery periods have presented significant challenges to the Veteran’s ability to maintain gainful employment—including both truck driving and sedentary positions. The Veteran opted in August 2009 to re-train in information technology through the VA’s educational and occupational rehabilitation program to seek sedentary employment due to his continuing physical disabilities. The Veteran’s original goal was to obtain a Bachelor of Applied Science in Network Security and Forensics; however, he left the program early and instead received an associate’s degree. He later reported to a VA clinician during a PTSD assessment in 2011 that he was involved in a verbal altercation with a classmate while he had been attending school. He also reported to the same clinician that he had difficulty retaining information which eventually led to problems preparing himself for exams. Following his graduation in December 2010, the Veteran underwent another surgery and again was temporarily 100 percent disabled from January 2011 through May 2011. In August 2011, after being unsuccessful in his attempt to find sedentary employment, the Veteran resumed truck driving on a part-time basis. In January 2012, the Veteran had another surgery and was again granted temporary 100 percent disability from January 2012 through June 2012. The Veteran then sought work again as a truck driver from June through August 2012, but reported to VA examiners that he quit his position due to his poorly controlled anger management issues. The Veteran reports that he has been unemployed since August 2012. According to a 2015 letter from the Veteran’s VA treatment provider, the Veteran began psychotherapy for posttraumatic stress disorder (PTSD) in February 2013 with a primary focus on the Veteran’s interpersonal difficulties and anger. This treatment included an attempt at Cognitive Processing Therapy (CPT). The Veteran’s treating psychologist explains, however, that the Veteran was unable to complete CPT due to his difficulties in tolerating frustration associated with completing simple written tasks. The treating psychologist opined that evidence from the Veteran’s treatment indicates the Veteran would “face difficulties in any work environment, around safety and trust, frustration tolerance, anger management, and conflict resolution.” During an April 21, 2015 neuropsychology consult, the VA examiner found the Veteran to have “significant thinking and concentration problems” that were accompanied by poor social judgment and emotional lability (a neurological condition making it difficult to control emotions). The examiner also explained that the various neurological impairments noted on the Veteran’s examination were “likely the result of depression, posttraumatic stress disorder and chronic pain.” II. Analysis An award of TDIU requires a veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability. For schedular consideration, a veteran must meet one of the following conditions: 1) a single service-connected disability rated at 60 percent or more, or 2) at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The effective date for the grant of TDIU is governed by the increased rating provisions of 38 C.F.R. § 3.400(o), which provides that, absent clear and unmistakable evidence, an effective date may be assigned up to a year prior to the filing of the current TDIU claim. See Hurd v. West, 13 Vet. App. 229 (2000). In February 2014, the Veteran submitted a letter noting that the appropriate effective date for any award of TDIU should be August 31, 2009 because that is the date he filed his first claim for TDIU. Although the Board does not doubt the truth of these statements and recognizes that this makes intuitive sense, the law in this area is clear that RO decisions become final once their appellate period has passed. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006); see 38 U.S.C. § 5109A. Because the Veteran’s first TDIU decision was never appealed, it became final in 2009. Therefore, the Board regrets that, by law, a more favorable finding is not available as to the matter of an effective date for the current award of TDIU. The Veteran’s service-connected disabilities are: PTSD, rated 70 percent since October 5, 2012 (50 percent from February 8, 2011); left ankle tendonitis and sural nerve neuritis rated 30 percent since August 11, 2009; and left leg shin splints 10 percent from August 11, 2009. His combined disability rating has been 80 percent since October 5, 2012 and was previously 60 percent from August 11, 2009. The Veteran accordingly meets the schedular threshold for consideration of a TDIU under 38 C.F.R. § 4.14(a) for the entire period of the appeal. The Veteran’s service-connected psychiatric disability causes occupational and social impairment with deficiencies in most areas. The evidence readily shows the Veteran’s disability has produced impairments in thinking (e.g., deficits in memory recall, attention, and concentration, and persecutory thoughts), interpersonal relationships (e.g., social isolation, problems with authority figures, and a history of attitude problems leading to conflicts or termination in work settings), and mood (irritability, depression, panic attacks, and anxiety), all of which would reasonably interfere with the Veteran’s ability to obtain or maintain substantially gainful employment—sedentary or otherwise. In making these decisions, the Board has, in addition to the Veteran’s treatment records, considered the lay statements from the Veteran, his spouse, and his son regarding the current severity of the Veteran’s service-connected PTSD. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran, his spouse, and his son are all competent to give evidence about what they observe or experience. For example, the Veteran is competent to report that he experiences certain symptoms, such as sleep impairment, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). While several prior VA opinions conclude that sedentary employment for the Veteran would not be precluded, the Veteran’s most recent evaluation and statements from his treating psychologist are more persuasive because they provide a more current assessment of the Veteran’s psychological disabilities. Particularly compelling is the 2015 letter from the Veteran’s psychologist attesting to the Veteran’s difficulties with completing simple written tasks, as well as his difficulties with anger management and conflict resolution. Given the author of the letter has met with the Veteran for thirty-five therapy sessions beginning in February 2013, significant weight is given to these statements due to the author’s familiarity with the Veteran and the Veteran’s individual circumstances. Prior VA opinions are given probative value to the extent they are consistent in reporting the Veteran’s occupational and social impairment with reduced reliability and productivity as well as the Veteran’s credible statements concerning his ongoing symptoms. The American Psychiatric Association has recommended that the use of Global Assessment of Functioning (GAF) scores be discontinued because these scores are unreliable. See Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) at 16 (abandoning the GAF scale due to its “conceptual lack of clarity”); see also Golden v. Shulkin, No. 16-1208, 2018 (Vet. App. Feb. 23, 2018) (explaining that the Board should not consider GAF scores when evaluating mental disorders rated using the DSM-5 criteria); 70 Fed. Reg. 45093 (Aug. 4, 2014) (formally adopting the DSM-5). Therefore, because of their inherent unreliability, the analysis in this decision does not consider any GAF scores in the Veteran’s record, considering only the symptoms experienced by the Veteran and the medical opinions that address those symptoms. The weight of the evidence shows that the Veteran is unable to work due to his service-connected PTSD lay statements from the Veteran and various family members as well as the cited medical evidence of record. Recent VA examinations of record tend to support the finding that the Veteran became unable to secure and follow substantial gainful employment due to his PTSD symptoms, to include as due to irritability, anger, difficulty concentrating, and low frustration tolerance. Accordingly, the weight of the evidence shows that the Veteran is unemployable due to service-connected disabilities. For these reasons, entitlement to TDIU is granted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. B. Kucera, Associate Counsel