Citation Nr: 18150520 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 09-26 570 DATE: November 15, 2018 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) for the period prior to September 12, 2016, is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT The Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation prior to September 12, 2016. CONCLUSION OF LAW The criteria for a TDIU prior to September 12, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1964 to November 1968, and February 1975 to February 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which granted an increased rating for posttraumatic stress disorder (PTSD), evaluating it as 50 percent disabling effective May 5, 2016, and 100 percent disabling effective September 12, 2016, and denied entitlement to a total disability rating due to individual unemployability (TDIU) for the period of August 28, 2012 to September 12, 2016. The issue of entitlement to TDIU remained on appeal as part and parcel of the claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In May 2017, the Board remanded the claim for an increased rating for PTSD prior to September 12, 2016 and the issue of entitlement to a TDIU prior to September 12, 2016 for a new Board hearing as requested by Veteran due to the retirement of the Veterans Law Judge who presided over the Veteran’s August 2010 Board hearing, a transcript of which is of record. The Board notes that the RO and the Board have implicitly determined that the 100 percent rating from September 12, 2016 rendered the issue of entitlement to a TDIU from that date, consistent with the holdings of Buie v. Shinseki, 24 Vet. App. 242 (2010) and Bradley v. Peake, 22 Vet. App. 280 (2008) that a 100 percent schedular rating does not render the issue of entitlement to a TDIU moot, if the TDIU could render the Veteran eligible for special monthly compensation benefits pursuant to 38 U.S.C. § 1114(s). As the only other disabilities for which the Veteran is service connected are tinnitus, rated 10 percent and hearing loss, rated noncompensable, the Board adheres to this finding herein. In a September 2017 statement, the Veteran withdrew his request for a new hearing. In January 2018, the Board granted an increased, 70 percent rating for PTSD prior to September 11, 2016. This decision was final on the date stamped on the face of the Board decision and the claim is no longer before the Board. 38 C.F.R. § 20.1100(a) (2017) (a Board decision is final on the date stamped on the face of the decision). The Board remanded the issue of entitlement to a TDIU prior to September 12, 2016 for additional development to include a full employment history. The RO continued the denial of a TDIU prior to September 12, 2016 in the September 2018 supplemental statement of the case. The Board notes that the Veteran’s attorney filed a VA Form 9 (appeal to the Board) in October 2018, however, because the issue of entitlement to a TDIU prior to September 12, 2016 had already been appealed and remanded by the Board, a substantive appeal was not required in order for the case to return to the Board. 38 C.F.R. §§ 19.9(a), 19.31(c) (providing for Board remand and issuance of supplemental statement of the case following a Board remand). In addition, the Board notes that the Veteran’s attorney filed, and then in September 2018 withdrew, an appeal to the Court. As a Board remand is not an appealable decision, the appeal does not affect the remanded issue of entitlement to a TDIU. See Breeden v. Principi, 17 Vet. App. 475, 478 (2004). TDIU The Veteran and his attorney contend that the Veteran is entitled to a TDIU as he has not been substantially gainfully employed since 2006 due to his PTSD. A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more; or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. The issue is whether the veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the veteran is entitled to a TDIU, neither the veteran’s non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad, 5 Vet. App. 524. The Veteran is currently service connected for PTSD, evaluated as 70 percent disabling from August 22, 2007, and 100 percent disabling from September 12, 2016; tinnitus, evaluated as 10 percent disabling from August 26, 2010; and bilateral hearing loss, evaluated as noncompensable. The Veteran’s combined rating is 70 percent from August 22, 2007, and 100 percent from September 12, 2016, thus the Veteran is eligible for consideration for a TDIU on a schedular basis from August 22, 2007 to September 12, 2016. See 38 C.F.R. § 4.16 (a). Nonetheless, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. A March 2008 VA examination report noted that the Veteran’s PTSD did not result in reduced reliability and productivity, and that while the Veteran has missed about a month from work, his absence was not due to PTSD symptoms, but because of colds and the flu. The examiner noted mild to moderate concentration problems, and that during times of significant stress, the Veteran’s work performance will decrease. The examiner indicated that the Veteran’s PTSD symptoms created a high level of irritability which make it difficult for him to tolerate authority, and noted that they are likely responsible for the Veteran’s multiple marriages and jobs as he has difficulty developing and maintaining relationships. The Veteran’s VA 21-8940 application indicates the Veteran has 4 years of high school education and was self-employed as a maintenance man, but is currently unable to work due to his PTSD. The Veteran also indicated that his current monthly income is 700 dollars a month and that he has earned 2,500 dollars in the past 12 months. The Veteran stated that his temper and anger has caused him to lose employment opportunities. A September 2014 VA examination report indicated the symptoms caused by the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity, but that his psychiatric condition alone did not impair his ability to obtain and maintain gainful employment. The examiner noted that the Veteran has not worked full time in 40 years and still does some handyman work. A May 2016 disability benefits questionnaire (DBQ) noted that the Veteran’s PTSD symptomatology resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran’s reports of increased anxiety when out in public and that “lately he’s been a little more irritable and angry”. The examiner stated that the Veteran’s PTSD symptoms could reasonably be expected to impact functioning in a work setting, but would not opine on the Veteran’s overall unemployability. In an August 2018 report, Dr. Weichert indicated that it was likely that the Veteran’s psychiatric symptoms are serious and permanent, and had been totally occupationally impaired since August of 2007. The evidence is at least evenly balanced as to whether the Veteran’s service connected disabilities rendered him unemployable prior to September 12, 2016. The evidence supports a finding that his service-connected PTSD makes it difficult for the Veteran to perform the requisite duties of a person of his experience and education. The Veteran was previously self-employed as a handyman/ maintenance worker, but his PTSD symptoms including anxiety, irritability, anger and impaired impulse control make it difficult for the Veteran to work for, or around people, rendering employment in line with his experience infeasible. Accordingly, the evidence is at least evenly balanced as to whether Veteran’s service connected PTSD precludes him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted for the period prior to September 12, 2016. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. (Continued on the next page)   The evidence suggests that the Veteran stopped working full time due to his service connected disabilities in February 1969, but has worked since July 2006 in construction approximately 10 hours a week earning at most 700 dollars a month which according to the VA Adjudication Manual, M21-1, IV.ii.2.F.6.b. does not meet the poverty threshold and is considered marginal employment. However, the Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating.”) Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel