Citation Nr: 18146101 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-31 468 DATE: October 30, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran is service-connected for posttraumatic stress disorder (PTSD) with alcohol and cocaine dependence, rated 70 percent disabling. 2. The Veteran’s service-connected PTSD with alcohol and cocaine dependence precludes all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disability are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1969 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision, in which the agency of original jurisdiction (AOJ) awarded service connection for PTSD with alcohol and cocaine dependence and assigned an initial 10 percent disability rating. The Veteran submitted a timely notice of disagreement with the initial rating assigned in the July 2012 decision. The Veteran requested a Board hearing before a Veterans Law Judge on his July 2014 substantive appeal (VA Form 9). He withdrew his hearing request in March 2018 (see a March 2018 statement from his representative). In May 2018, the Board adjudicated the issue of entitlement to a higher initial rating for PTSD with cocaine and alcohol dependence. The Board also expanded the appeal to include the inferred issue of entitlement to a TDIU, see Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the TDIU issue for further development. Entitlement to a TDIU due to service-connected disability VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. 4.16 (a). Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the Veteran’s service-connected PTSD with alcohol and cocaine dependence precludes all substantially gainful employment for which his education and occupational experience would otherwise qualify him. The Veteran is service-connected for PTSD with alcohol and cocaine dependence, rated 70 percent disabling. Hence, he meets the percentage requirements for a TDIU. See Id. The remaining question is whether his service-connected disability precludes gainful employment for which his education and occupational experience would otherwise qualify him. A June 1998 decision from the Social Security Administration (SSA) and a November 1999 “Veteran’s Application for Compensation or Pension” form (VA Form 21-526) reflect that the Veteran completed high school and received additional training in computer operations and accounting. He had employment experience in shipping and receiving at a grocery store/as a warehouse supervisor. He worked many jobs for short periods of time, but these jobs usually ended in the him being fired or terminated. He was found to be “unable to perform the job requirements because of his mental symptoms of agitation, anxiety, rage, and assaultive behavior,” and he reported that the very act of working (which required contact with other people) increased his symptoms to the point that he was repeatedly fired. He was awarded SSA disability benefits on the basis of psychiatric disability. In a November 1999 letter, F. Riccioli, M.D. reported that he had been treating the Veteran since 1975 for explosive personality disorder with paranoid trends. The Veteran experienced “much difficulty in keeping any job offered to him because of this personality disorder,” his moods were fragile, and he became extremely agitated and explosive with minimum provocation. As a result, he had a poor work history, despite his repeated efforts to find employment. His prescribed medications were of a limited value because low doses of medication did not contain his explosive outbursts and higher doses tended to sedate him to the point that he was unable to work. Hence, Dr. Riccioli concluded that the Veteran was “totally disabled and incapable of keeping and persisting at a job” and that his prognosis for recovery was poor. In an August 2000 letter, Dr. Riccioli reported that despite medication use and therapy, the Veteran’s mental illness had become chronic. He opined that the Veteran was “unemployable and permanently and totally disabled.” In a March 2003 letter, the Veteran’s aunt reported that the Veteran had completed high school and 1 year of “communication school.” After service, he performed clerical work, “but never stayed on a job long.” Although he would secure new jobs, he would quit because he could not take the pressure. The report of a November 2010 VA psychiatric examination reflects that the Veteran experienced agitation, rage, outbursts, auditory hallucinations, and homicidal ideation. He made verbal threats to others and his homicidal thoughts tended to focus on people he had known in the past. His rage outbursts involved significant verbal displays of anger, with threatening verbalizations. His agitation included pacing, hand-wringing, shaking of the body, and loud verbal outbursts. He was able to work as a textile factory supervisor during periods of remission and relief, but such jobs were relatively brief in duration. His postmilitary adjustment was characterized by chronic anger and agitation, in the context of serious psychiatric difficulty, and he had engaged in addictive substance abuse since leaving the military. He had managed to maintain gainful employment much of the time, although he had been fired over the years due to the use of cocaine. He was employed for 5 years as the manager of a textile plant in the 1980s and, at the time of the November 2010 examination, he had been working for several years as an inventory clerk. Examination revealed that the Veteran was casually dressed, but somewhat sloppily groomed. He expressed himself using coherent language, however he often slipped into an agitated state. He experienced occasional auditory hallucinations and vague persecutory delusions, and there was an overall sense of agitated paranoid thought processes. He made fleeting eye contact and appeared to shake with rage or emotional agitation when topics troubling him were discussed. He verbalized homicidal thoughts towards a military officer whom he felt tormented him in service, but he did not have any suicidal thoughts. He was fully oriented and there was no evidence of specific memory loss, but there seemed to be some disruption of long-term memory in terms of the precision of dates and sequences of important events. The Veteran’s speech became rapid and loud when he was agitated, he reported intense anxiety, and he appeared to be “quite anxious” during the November 2010 examination. Impulse control was somewhat intact, but he seemed to have considerable trouble containing his agitation. He reported some sleep disturbance in the form of nightmares related to service and his affect was notably labile with sudden shifts from calm discussion of historical information to pressured speech, racing thoughts, and rageful content. The Veteran was diagnosed as having PTSD and schizoaffective disorder. The examiner who conducted the November 2010 examination concluded that the Veteran demonstrated severe subjective distress, active chronic mental illness, and prominent drug and alcohol addiction. He was able to work on a regular basis and earn money, but he had lost jobs in the context of drug addiction. He displayed consistently paranoid ideation in the context of rage outbursts and occasional auditory hallucinations, he experienced frequent agitation, and his psychiatric problems appeared to be significantly worsened by drug and alcohol dependence. Anxiety and agitation appeared to be constant features of his every-day life and his mental illness appeared to be chronic and severe. The Veteran reported during a May 2014 VA psychiatric examination that his symptoms were “getting worse and worse” and that he experienced intrusive memories and ruminative thoughts of in-service trauma, flashbacks, constant panic, suspiciousness, paranoia, anger and irritability (characterized by physical and verbal aggression), chronic sleep impairment, nightmares, social isolation, hypervigilance, a hyper startle response, low frustration tolerance, mood swings, a depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a worklike setting), and impaired impulse control. He had considered suicide, but thoughts of his wife and cat prevented him from acting on these thoughts. He got in frequent verbal arguments with his wife, had broken things during fits of rage, rarely socialized with others, and only left his house for medical appointments because he was afraid to leave the house and feared others. He resigned after working part time for 10 years at a grocery store conducting inventory. Although he explained that his orthopedic surgeon had excused him from work due to low back pain and severe right knee arthritis, his psychiatric disability also impaired his ability to work because he was irritable, verbally aggressive, and paranoid that others were trying to cause him harm while working. Examination revealed that the Veteran was fully alert and oriented, but that his mood was mixed anxious and irritable and that his affect was labile. He was diagnosed as having PTSD, alcohol dependence, and cocaine dependence. The psychologist who conducted the examination concluded that the Veteran’s impairment related primarily to his PTSD was severe. His explosive anger (physical and verbal aggression) and suspiciousness of others would make it difficult for him to find and maintain gainful employment. In a May 2014 statement and a July 2016 addendum, Dr. Silvestri reported that the Veteran experienced severe war-related nightmares, fear of dying, low frustration tolerance, a persecution complex, anger, angry outbursts while under stress, and difficulty relating to others. He opined that the Veteran was “not able to work at any job” and that he would be an “unreliable employee.” At the time of the July 2016 addendum, the Veteran’s PTSD symptoms had all intensified, he was “basically housebound,” and he was still “not able to work at any job.” In April 2018, the Veteran submitted a “Review Post Traumatic Stress Disorder Disability Benefits Questionnaire” (DBQ) (VA Form 21-0960P-3) completed by Dr. Silvestri. The DBQ indicates that the Veteran experienced severe PTSD which resulted in “total occupational and social impairment.” The Veteran had dropped out of college after service because he was not able to function and could not concentrate, and he had attempted different jobs. The symptoms of his PTSD included a depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory loss, a flattened affect, impaired speech, difficulty in understanding complex commands, impaired judgement, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a worklike setting), suicidal ideation, obsessional rituals which interfered with routine activities, impaired impulse control, spatial disorientation, neglect of personal hygiene and appearance, and an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). Dr. Silvestri concluded that the Veteran’s PTSD caused erratic and chronic behavior and mood fluctuations which occasionally rendered him unable to make decisions. The above evidence reflects that the Veteran has a high school education and completed some additional training in computer operations and accounting. He has employment experience in shipping and receiving, as a warehouse and factory supervisor, and working with inventory at a grocery store. He was unemployed at the time of the May 2014 VA examination and there is no evidence of any employment since that time. Although the Veteran reported during the May 2014 examination that he stopped working partially due to back and right knee disabilities, he also explained that his psychiatric disability had impaired his ability to work because he was irritable, verbally aggressive, and paranoid that others were trying to cause him harm while working. While employed, he experienced significant occupational disruptions due to mood and behavioral problems associated with his psychiatric disability and he had lost a number of jobs throughout the years due to such problems, as well as due to his associated substance abuse. Moreover, the severe impairments from his psychiatric disability (e.g. anger, irritability, impaired concentration and memory, and paranoia), and their negative impact on his ability to interact with others, would significantly interfere with his ability to perform both physical and sedentary employment. Also, various medical professionals have indicated that the Veteran is unable to maintain gainful employment as a result of his service-connected psychiatric disability. The above discussion of the severity of the symptoms of the Veteran’s service-connected psychiatric disability and his educational and occupational experience, to include the medical opinions, reflects that the preponderance of the evidence is in favor of a conclusion that the Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected PTSD with alcohol and cocaine dependence. Hence, entitlement to a TDIU is warranted.   The Board notes that there is not a formal TDIU application form (VA Form 21-8940) of record. In this situation, a decision must be made based on the available evidence of record, as has been done above. See VA Adjudication Manual, M21-1, IV.ii.2.F.2.b (if the issue of entitlement to a TDIU is raised and the Veteran fails to complete and return VA Form 21-8940, VA must make a decision on the issue of IU based on the available evidence of record). While the Adjudication Manual is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), it provides useful guidance that is appropriate in this case. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel