Citation Nr: 18151423 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 15-14 265A DATE: November 19, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) from October 19, 2013 is granted. FINDING OF FACT Resolving the benefit of the doubt in the Veteran’s favor, the evidence demonstrates that the Veteran’s service-connected disabilities have prevented him from securing or following substantially gainful employment since October 19, 2013. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met from October 19, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. The Veteran asserts that he has been unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). Preliminarily, the Board notes that the Veteran meets the schedular criteria for a TDIU. In that regard, the Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD) with major depressive disorder, panic disorder, and major neurocognitive disorder due to traumatic brain injury (TBI) (previously rated as amnestic disorder chronic due to head trauma) 30 percent from July 1, 2006 to September 11, 2013, 70 percent from September 12, 2013 to August 16, 2016, 50 percent from August 17, 2016 to August 28, 2017, and 100 percent thereafter; TBI 10 percent from July 1, 2006 to July 17, 2016, 70 percent from July 18, 2016 to August 29, 2017; migraines 50 percent from July 18, 2016 forward; status post fracture of the cervical spine with degenerative disease 10 percent from July 1, 2006 to September 11, 2013, 20 percent from September 12, 2013 to July 19, 2015, 10 percent from July 20, 2015 to September 27, 2016, and 30 percent thereafter; lumbar sprain 10 percent from September 24, 2014 to September 27, 2016, 20 percent thereafter; radiculopathy of the right and left upper extremity associated with status post fracture of the cervical spine with degenerative disease each rated at 20 percent from September 28, 2016 forward; radiculopathy of the right and left lower extremity associated with lumbar sprain each rated at 10 percent from September 28, 2016 forward; and status post skull fracture, right and left foot tinea pedis, and right and left foot plantar warts all rated at 0 percent from July 1, 2006 forward. The Veteran’s combined disability rating is 40 percent from July 1, 2006 to September 11, 2013, 80 percent from September 12, 2013 through July 17, 2016, and 100 percent thereafter. As a preliminary matter, the Board acknowledges that the Veteran was found to be disabled by the Social Security Administration (SSA), effective October 2013. The SSA considers different criteria to determine disability than the VA, which include residual functional capacity, all of the claimant’s disabilities, age, education, and work experience. The VA does not consider age nor non-service connected disabilities. The SSA found the Veteran to be disabled based on his disabilities including: back disorder, neck disorder, chronic pain syndrome, TBI with a memory disorder, mood disorder, anxiety disorder, and amnestic disorder. The Veteran is currently service-connected for all of these disabilities except for chronic pain syndrome. Upon a review of the record, the Board finds that, resolving the benefit of the doubt in the Veteran’s favor, the evidence demonstrates that the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation since October 19, 2013, the date on which the evidence demonstrates his employment ended. See VA Form 21-4192 signed March 22, 2017. The Veteran reported that he had 4 years of college education with no other training. The Veteran’s work experience consisted of working as an aviation ordnanceman building bombs while in service. He was a supply handler and then an ordnance equipment mechanic for missile maintenance after service. The evidence demonstrates that the Veteran last worked in October 2013. Examination reports and treatment records related to the Veteran’s service-connected mental health disability reflect that the Veteran is irritable, agitated, anxious, depressed, has sleep problems, disturbances of motivation and mood, difficulty establishing effective work and social relationships, difficulty adapting to stressful circumstances at work and in worklike settings, inability to establish and maintain effective relationships, suicidal ideation, memory dysfunction, occupational and social impairment with reduced reliability and productivity, and intermittent social isolation. See VA Mental Disorder Examination April 2014 and VA PTSD Examination July 2015. Examination reports and treatment records related to the Veterans TBI reflect that the Veteran has mild memory loss, problems concentrating, headaches, occasional disorientation, occasional dizziness, light sensitivity, and anxiety. See VA TBI Examination October 2013 and July 2015. In October 2013, the Veteran reported conflict at work due to irritability and anger, which the examiner said were not due to his TBI. However, the Veteran was found to be irritable and agitated due to his mental health issues. Cervical spine reports and treatment records show that the Veteran has limited range of motion in his neck with painful head rotation that impacts the Veteran’s ability to work. See VA Neck Examinations October 2013 and June 2015. While the mental health and TBI examiners reported that the Veteran is able to work doing simple and repetitive tasks in a highly structured setting, the Board finds it unlikely that the Veteran would be able to secure and follow a sedentary occupation given the impairment from his service-connected PTSD, TBI, and cervical spine disability. In that regard the evidence reflects that the Veteran would likely be unable to understand and remember complex commands, work in an environment that required any type of head rotation, maintain concentration, maintain effective work relationships, maintain a regular schedule, or adapt to a work environment. Based on the Veteran’s total (service-connected) disability picture and work history as a mechanic during and post service, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation since he last worked in October 2013. Accordingly, resolving the benefit of the doubt in the Veteran’s favor, the Board finds entitlement to a TDIU is warranted from October 19, 2013. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. A TDIU is not warranted at any point prior to October 19, 2013, however, as the evidence demonstrates that the Veteran was employed with no accommodations and the Veteran has not alleged otherwise. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Megan Shuster, Law Clerk