Citation Nr: 18145767 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-20 159 DATE: October 30, 2018 ORDER The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran’s service-connected PTSD meets the percentage requirement for a schedular TDIU, and the collective evidence of record suggests that the disability has as likely as not prevented him from obtaining or retaining substantially gainful employment since August 2011. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for a TDIU due to service-connected PTSD are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340. 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1967. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, denied the Veteran’s claim for TDIU. In June 2013, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in May 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in June 2015. In August 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. During the hearing, the Veteran, through his representative, requested that the record be held open for 60 days to allow time to submit additional evidence. Subsequently, the Veteran’s representative submitted an opinion from a Certified Vocational Rehabilitation Counselor dated October 2016. As for the matter of representation, the Veteran was previously represented by agent Neil Riley, as reflected in an August 2016 VA Form 21-22a and, subsequently, by private attorney Penelope Gronbeck (with the same firm), as reflected in a November 2016 VA Form 21-22a. However, in November 2017, the Veteran executed another VA Form 21-22a naming private attorney Alexandra Jackson (with the same firm) as his representative. The Board recognizes the changes in representation. At the outset, it is noted that, given the fully favorable resolution of the claim on appeal, as discussed below, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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 disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran meets the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for a schedular TDIU due to PTSD, for the entire period under consideration. In this regard, service connection is currently in effect for PTSD, rated as 70 percent disabling throughout the period in question. As the Veteran is thus eligible for schedular consideration of a TDIU rating under 38 C.F.R. § 4.16(a), the remaining question is whether the Veteran’s PTSD has rendered him unable to obtain or retain substantially gainful employment during the period in question. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence of record, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that a TDIU due to PTSD is warranted. On his July 2011 application for increased compensation based on unemployability (VA Form 21-8940), the Veteran contended that his PTSD had prevented him from securing or following substantially gainful employment, and that he had become too disabled to work starting in April 2008. The also Veteran indicated that he had a high school education. He reported that he had no other education and training. The Veteran submitted a second VA Form 21-8940 in September 2011 wherein the Veteran indicated that he became too disabled to work in August 2011. Regarding employment history, the Veteran reported that he worked 24 years as a carpenter and after that that he worked part-time as an auto parts delivery driver. The Veteran appears to have been still employed in a part-time capacity when he filed his first VA Form 21-8940. On the Veteran’s second form, filed in September 2011, he indicated that he was employed as an auto parts delivery driver from April 2010 to August 2011. VA treatment notes reflect that the Veteran has endorsed a range of symptoms including anxiety and irritability. In September 2011, the Veteran reported that he retired because he “could not get along with management.” In a September 2012 psychiatry note, the psychiatrist stated that the disabling symptom that prompted the Veteran to leave his occupation was difficulty controlling anger. A November 2014 note states that “he is unemployable because of his intense anxiety and exacerbation of symptoms from the autonomic, hyperarousal, and numbing symptom clusters.” The claims file includes two responses to requests for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192). The Veteran’s first employer, where the Veteran was employed as a carpenter and then as an inspector, reported that the Veteran was employed full-time from September 2000 to April 2008 and that the Veteran voluntarily resigned. The Veteran’s second employer, where the Veteran was employed as an auto parts delivery driver and salesman, reported that the Veteran was employed part-time from February 2010 to September 2011 and that the Veteran “no longer needed to work.” The Veteran underwent a compensation and pension examination in September 2011. The examiner noted that the Veteran stopped working his part-time job in August 2011 because of pain in his legs and also because the Veteran would become frustrated with co-workers and customers which resulted in complaints filed against the Veteran. In providing the requested opinion regarding whether or not the Veteran’s service-connected PTSD rendered him unable to secure and maintain substantially gainful employment, the examiner noted that the Veteran’s irritability led to customers and coworkers complaining about the Veteran’s behavior and acknowledged that the Veteran had endorsed irritability in other contexts which led the examiner to conclude that the Veteran’s irritability issue is not isolated to his work environment and that it would likely continue into environments which require interactions with others. During the August 2016 Board hearing, the Veteran testified that he had quit his most recent job because he was moved into a position requiring more interaction with customers which he found difficult. He also clarified that the reason he left the job prior to that is that he could not get along with the superintendent and he “was afraid somebody [was] going to get hurt” and that he would lose his retirement and benefits. The Veteran reported that he had no vocational training or certifications and that he had not attended college. Regarding his current level of symptoms, the Veteran testified that he requires medication during the day for his mood and that he prefers to stay in his house, only going outside of the house when he had to pick up his grandson or do something on his own. The Veteran described trouble sleeping and nightmares and that he woke up a few times per night. The Veteran reported that he sees his mental health provider once per month and that his provider recommended that he stay away from people as much as possible. In October 2016, the Veteran, through his representative, submitted a report from a private Certified Vocation Rehabilitation Counselor opining that the Veteran’s PTSD symptoms render him unemployable. The counselor reviewed and discussed the Veteran’s medical history and provided a report based on that review and an interview with the Veteran. The counselor specifically noted that the Veteran’s PTSD symptoms caused him to leave his occupation because he had issues with irritability and difficulty controlling his anger. Specifically, the Veteran reported that he retired from his occupation because he had gotten a new supervisor that he could not get along with, and that after 5-8 years of it, he was afraid that he would hurt the supervisor or himself. At his part-time job after retirement, the Veteran reported that he resigned after he had been reassigned to work at a counter selling parts directly to customers because he couldn’t get along with customers and co-workers. He stated that customers had complained about his behavior towards them. He reported that he still could not do this kind of work presently as he stays “completely away from people now.” Additionally, the Veteran reported that he cannot deal with the public, crowds or with people in close proximity to him and that he is reluctant to leave his home. The counselor opined, “[i]t is more likely than not that this veteran could not sustain the rigors of competitive employment since all employment requires relating to others on some level, including co-workers and supervisors.” The Board notes, initially, that at issue in this case is a question as to why the Veteran ceased working, and it appears that the rating decision on appeal was based on the information provided by the Veteran’s last employer indicating that the Veteran no longer needed to work. However, during the 2016 Board hearing, the Veteran clarified that he ended his employment because his PTSD symptoms—specifically, his irritability—rendered him unable to interact with others. This testimony is consistent with the report of the Certified Vocational Rehabilitation Counselor, who conducted an in-depth interview of the Veteran and reviewed his history and assertions, as well as the claims file, and provided a detailed and thorough report suggesting that the functional effects of the Veteran’s PTSD—specifically, his irritability and difficulty controlling his anger—prevented him from obtaining or retaining substantially gainful employment. The Board accepts this report as particularly probative in describing the functional effects of the Veteran’s disability, which support the Counselor’s assessment as to his employability. Notably, there is no contrary, competent evidence of record. While the September 2011 examiner did not explicitly comment on the Veteran’s employability, the examiner did state that it was possible that the Veteran’s irritability and frustration would continue in an environment that requires interactions with others. Importantly, this comment is generally consistent with the Counselor’s assessment and the Veteran’s testimony, discussed above. The Board acknowledges that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a). See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). However, as medical records addressing the functional effects of the Veteran’s disability on his ability to perform the acts required for substantially gainful employment are relevant to the unemployability determination (see 38 C.F.R. § 4.10 (and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)), the Board has considered such evidence, along with lay and other objective evidence of record, in evaluating the TDIU claim. Given all the above, the Board finds that the collective lay, medical and employment evidence of record suggests that the Veteran’s PTSD has as likely as not prevented him from obtaining or retaining substantially gainful employment since August 2011. Where, as here, after careful consideration of all procurable and assembled data, reasonable doubt arises regarding any issue material to the determination of a matter, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107(b); Gilbert, supra. Accordingly, given the totality of the evidence discussed above, and with resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that the criteria for a TDIU due to PTSD are met from the date the Veteran ceased working in August 2011. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacqulyn Lane, Associate Counsel