Citation Nr: 18149159 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 07-34 361 DATE: November 8, 2018 ORDER 1. An effective date of January 1, 2008, but no earlier, for a total disability rating based on individual unemployability (TDIU) is granted. 2. Entitlement to a TDIU prior to January 1, 2008 is denied. FINDINGS OF FACT 1. The Veteran’s service-connected posttraumatic stress disorder (PTSD) rendered him unable to secure or maintain a substantially gainful occupation, effective January 1, 2008. 2. None of the Veteran’s disabilities, including PTSD, rendered him unable to secure or maintain a substantially gainful occupation, prior to January 1, 2008, and his earnings from 2005, 2006, and 2007 far exceeded marginal income. CONCLUSIONS OF LAW 1. The criteria for a TDIU have been met as of January 1, 2008, but not earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. 2. The criteria for a TDIU have not been met prior to January 1, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to May 1970. This matter comes before the Board of Veterans Appeals (Board) through a Joint Motion to Remand issued by the United States Court of Appeals for Veterans Claims (CAVC). The Veteran had appealed the August 2017 Board decision to CAVC on the issue of entitlement to a TDIU prior to June 25, 2015 and it has returned to the Board for review. This matter has had a long history with the Board which has been discussed by the Board in its August 2017 decision. Therefore, the Board will dispense with a recitation of the full procedural history. In October 2007, the Veteran’s Representative filed an informal claim seeking entitlement to TDIU, and the Veteran filed a formal claim due to his service-connected PTSD in May 2008. See Letter from the Veteran’s Representative dated October 2007; VA Form 21-8940 dated May 2008. His representative stated in a statement submitted for the record that he stopped working on February 1, 2008. See Statement from Representative dated January 2016. The Veteran contends that he has been unable to secure or maintain substantially gainful employment due to his service-connected PTSD since prior to June 25, 2015. Specifically, he asserts that his entitlement to a TDIU arose on December 31, 2007. See Letter from the Veteran’s Representative dated September 2018. The Veteran made several lay statements about his inability to gain or maintain employment, including providing testimony at both the August 2009 hearing and the July 2013 hearing. The Veteran stated that his PTSD keeps him from working and causes him to be forgetful, to have a bad temper, and adds to his poor communication skills. See VA Form 21-8940 dated May 2008. Furthermore, the Veteran asserts that he has panic attacks, memory issues, and difficulty interacting with people. See VA 21-4138 dated March 2007. During the August 2009 hearing, the Veteran testified that he had to shut down his lawncare business in August 2008 because he was fired from a few jobs and would forget to mow certain lawns. See Hearing Transcript dated August 2009. In the July 2013 hearing, the Veteran further testified that he cannot type, does not know how to work a computer, other than maybe using Google, and has difficulty with accounting and numbers. See Hearing Transcript dated July 2013. The Board finds that the Veteran is competent to report the symptoms of PTSD as they relate to his occupational functioning and that his testimony is credible. Further, the Board finds that the statements regarding the Veteran’s symptoms and his employment qualifications have significant probative value because they are consistent with the other evidence of record, as discussed below. The Veteran also made several statements regarding when he felt that he was unable to continue working. The Veteran stated in his VA Form 21-8940 that he signed in February 2008 that he had stopped working as of February 2008. See VA Form 21-8940 dated May 2008. During the August 2009 hearing, he testified that he closed his business in August 2008 and during the July 2013 hearing, he stated that he did not work once he moved to Macon, Georgia, which was in September 2008. See Hearing Transcript dated August 2008; Hearing Transcript dated July 2013. The Veteran also stated during a VA medical appointment in August 2008 that “he wants to continue his business and is not sure he can do so while in the [PTSD] program…” See VA Treatment Records dated August 2008. The Board finds that these statements have minimal probative weight because they are inconsistent with each other as to when the Veteran was unable to continue working. 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). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. Id. The Veteran has been service-connected for PTSD, which is rated as 70 percent disabling since May 24, 2005. In addition, the Veteran is service-connected for diabetes mellitus, with a rating of 20 percent, since August 22, 2014; left ear hearing loss, with a noncompensable rating, since May 24, 2005; and onychomycosis, with a noncompensable rating, since June 25, 2015. He is in receipt of a combined disability rating of 70 percent as of May 24, 2005. Therefore, he has met the schedular threshold criteria for consideration of a TDIU since May 24, 2005. 38 C.F.R. § 4.16 (a). As discussed further below, upon review of the evidence, the Board finds that the Veteran’s service-connected PTSD has rendered him unable to secure or follow a substantially gainful occupation since January 1, 2008. The question in a TDIU claim is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reviewing the Veteran’s educational and employment history, the evidence of record indicates that the Veteran earned his General Education Diploma (GED) while in service and then attended two years of junior college following his discharge. See Neuropsychological Examination dated January 2011. The Veteran also obtained a contractor’s license in landscaping and a pest control license in the 1980s. See TDIU Vocational Assessment Report dated August 2018. The Veteran owned a lawncare business that he worked at for several years. While living in California, he worked there year-round, but then when he moved to Colorado in 1994, the lawncare work became seasonal. See TDIU Vocational Assessment Report dated August 2018. Upon moving to Colorado, the Veteran worked in several different jobs while it was off-season for landscaping. See TDIU Vocational Assessment Report dated August 2018. The Veteran reported during the June 2008 VA examination that some of the jobs he would work during the winter included maintenance jobs, delivery jobs, janitorial jobs, and working for an airline. See June 2008 VA Examination. There is a great amount of evidence in the record regarding the Veteran’s difficulty maintaining a job. The June 2008 VA examiner stated that “[i]n the winter, he reports that he has tried to take a temporary job but he has been unable to sustain these temporary work situations because it is ‘hard to take orders’ and so he has been fired or quit.” See June 2008 VA Examination. His former wife gave a lay statement that “[h]e has always been self-employed. Our first year in the Springs he had about 12 jobs.” See Lay Statement from V.B. dated July 2008. Similar lay statements were provided by other family members and by the Veteran himself. See Lay Statements from K.A. dated July 2008 and December 2012; Lay Statement from S.B. dated December 2012; Hearing Transcript dated July 2013. The lay statements provided by the Veteran’s daughters, his wife, and his ex-wife all show a pattern of the Veteran being unable to keep a job due to his inability to follow orders from a supervisor or take criticism from customers or supervisors. See Hearing Transcript dated July 2013; Lay Statement from K.A. dated July 2008 and December 2012; Lay Statement from S.B. dated December 2012; Lay Statement from V.B. dated July 2008; Lay Statement from D.B. dated December 2012. In addition, the Veteran’s wife provided testimony that the Veteran was unable to maintain employment after moving to Georgia. See Lay Statement from D.B. dated December 2012; Hearing Transcript dated July 2013. The Board finds that the statements made by the Veteran’s family are highly probative because the family members have first-hand knowledge of the Veteran’s employment history and their statements are all consistent with each other’s and with the record. The Veteran’s earning statements provided in the record show a significant decline in the Veteran’s income in 2008. In 2008, the Veteran’s reported earnings were $4,844.00 whereas the years prior they were regularly over $10,000 and in 2007 they were $22,514.00. See Income and Tax Statements dated August 2013. The Board find this earnings statement to be highly probative because it shows a stark difference in the Veteran’s earnings between the years of 2007 and 2008 which is supportive of the Veteran’s claim that he became unable to maintain gainful employment in 2008. The Veteran underwent three VA examinations in November 2005, June 2008, and August 2010. The November 2005 examiner noted that the “[t]he veteran has difficulty working for other people, and typically has to work in settings in which he works alone with little supervision.” He then opined that the Veteran was employable from a psychiatric standpoint, but will perform well only in settings in which he has no supervision and limited contact with the public.” See VA Examination dated November 2005. The June 2008 examiner found that the Veteran reported that his mental health functioning was a nine on a scale of one to ten, with ten being severe. The examiner further noted that the Veteran experienced forgetfulness, being consumed with thoughts of Vietnam, frequent road rage, and physically fighting with people. The June 2008 examiner also noted that the Veteran continued to work in his lawncare business on a seasonal basis and that in the winter he tried to take temporary jobs, but was unable to maintain those jobs because it was “hard to take orders.” Ultimately, the examiner opined that the Veteran retained the functional capacity to do simple work activities where he would have minimal contact with peers, supervisors, and the public. The examiner also found that the Veteran was experiencing some deterioration in his ability to perform the job tasks needed for his lawncare business and in getting along with others. See VA Examination dated June 2008. The August 2010 VA examiner found that the Veteran did not have total occupational and social impairment, but did find that he “has a long history of forgetfulness and he has interpersonal stress which makes employment difficult.” See VA Examination dated August 2010. The Board finds that all three VA examinations have great probative value because they are detailed in their analysis and rationale with references to the lay statements and treatment notes. However, the Board finds the June 2008 VA examination to be highly probative because the examination shows a marked deterioration in the Veteran’s ability to interact with others and maintain his business. VA treatment records also show a marked deterioration in the Veteran around the time of the June 2008 VA examination. Throughout the course of 2008, the Veteran’s medical records show that issues of forgetfulness and irritability were more prevalent as well as anger issues. See VA Treatment Records dated January 2008, April 2008, and August 2008. Specifically, the Veteran’s physician during an August 2008 appointment stated: “I am not sure he will be able to recover to the point of working” after discussing the PTSD symptoms that the Veteran was experiencing. See VA Treatment Record dated August 2008. Prior to this time, the medical records demonstrate that the Veteran was doing fine and that his employment was encouraged. See VA Treatment Records dated December 2007 and September 2007. The Board finds that these records have a high probative value because they were made contemporaneously as the Veteran’s symptoms developed and were made in the course of providing treatment. Three private opinions were also provided regarding the Veteran’s employability. The first is a neuropsychological evaluation conducted by Dr. D.L. in January 2011. Dr. D.L. noted that the Veteran’s last consistent level of employment was in 1994 and that the Veteran closed his family lawncare business in 2008. He opined that the Veteran became eligible for a TDIU in May 2005 because that was when the Veteran was no longer able to gain or maintain ‘substantially gainful employment.’ Dr. D.L.’s rationale was that by 2005 the Veteran was not working with others and was only self-employed in his lawncare business. He states that his self-employment and not working with others since 2005 proves that the Veteran has been completely disabled since then due to his PTSD. See Neuropsychological Evaluation dated January 2011. The Board finds the neurological evaluation holds some probative weight because it provides a detailed analysis of the Veteran’s work history. Dr. D.L.’s analysis of the Veteran’s PTSD does show that the Veteran has had difficulty with being employed for some time. However, the Board only affords the evaluation some probative weight in comparison to the TDIU Vocational Assessment Report, discussed below, and the VA examinations because the report is inconsistent with other evidence in the record which shows that the Veteran could maintain substantially gainful employment until 2008. See e.g., VA Examination dated June 2008; VA Treatment Records dated December 2007 and September 2007; Income and Tax Statements dated August 2013. In July 2015, a private physician, Dr. C.R., completed a Disability Benefits Questionnaire (DBQ) for PTSD for the Veteran. In that DBQ, Dr. C.R. found that the Veteran had stopped working approximately 5 years ago and that he had stopped working due to his physical limitations. He also found that the Veteran had a history of poor judgment, being unable to get along with others, being verbally abusive, having difficulty dealing with stress with anger, not dealing well with authority, and being unable to communicate with customers. See PTSD DBQ dated July 2015. Dr. C.R. opined at that time the Veteran was occupationally and socially impaired in most areas. The Board finds that this private examination has probative value because it supports the Veteran’s assertions that the he has been unable to work since before 2015. A TDIU Vocational Assessment Report was also submitted in August 2018. In the course of this evaluation, the Veteran stated that he closed his business in 2008 and had severe memory difficulties. The examiner opined that the Veteran became eligible for a TDIU in 2008 due to “severe limitations in accepting instructions and responding appropriately to criticism from supervisors, maintaining appropriate social behavior, interacting with coworkers, peers, and the general public, significant difficulties with memory, and maintaining concentration and focus.” See TDIU Vocational Assessment Report dated August 2018. The Board finds this report to have significant probative weight because it provides a thorough analysis of the Veteran’s symptoms and how they relate to his employability. Furthermore, the findings made in the report are consistent with the other evidence of record, including the June 2008 VA Examination. The question of employability is ultimately a legal one, not a medical question. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In reviewing all of the evidence of record, it is clear that while the Veteran’s PTSD caused some difficulty working prior to 2008, he was still able to maintain substantially gainful employment until summer 2008. The Veteran’s medical records, VA examinations, and private examinations all show that the Veteran was employed and maintained his lawncare business until 2008. His income for 2005, 2006, and 2007 far exceeded a marginal income and clearly showed he was capable of pursuing gainful employment. Therefore, entitlement to a TDIU prior to January 1, 2008 is denied. The Veteran became unemployable at some point in 2008. He made several statements that he still had his business in summer 2008. The inconsistencies in his statements are as to when in 2008 he stopped working. At the June 2008 VA examination, the Veteran reported being fired from one job earlier that month after forgetting to mow the lawn, but he still had a “few” other jobs. The Veteran stated that he had to close his business in August 2008, and his wife stated that he could not obtain a job upon moving to Georgia in September 2008. Therefore, it appears the Veteran’s ability to maintain substantially gainful employment deteriorated in and around the summer of 2008. It appears, however, that he did perform some work throughout the first half of 2008 and the beginning of the summer of 2008. The Veteran stated during a VA medical appointment in August 2008 that “he wants to continue his business and is not sure he can do so while in the [PTSD] program…” See VA Treatment Records dated August 2008. It appears from this statement, along with his testimony, that he closed his business in approximately August or September 2008. However, even accounting for the fact the Veteran was working for the first 7-8 months of 2008, the fact remains his work was sporadic and he was also losing jobs based on his memory issues. Even though he did some work in 2008, the Veteran’s earning statement shows a sharp decline in his income in the year of 2008, and his income was marginal in nature. Resolving all doubt in favor of the Veteran, the Board finds that his service-connected disability of PTSD rendered him unable to secure and follow a substantially gainful occupation consistent with his educational background and employment history, as of January 1, 2008, but no earlier. Again, his income for 2005, 2006, and 2007 was, according to VA’s definition, substantially gainful. Therefore, entitlement to a TDIU, effective January 1, 2008, is granted, and entitlement to a TDIU prior to January 1, 2008 is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Bognar, Associate Counsel