Citation Nr: 18151641 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-33 184 DATE: November 19, 2018 ORDER A total disability rating based upon individual employability (TDIU) on a schedular basis due to the Veteran’s service-connected disabilities is granted. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s service-connected disabilities have rendered him unable to secure and to follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU on a schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1969 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a Form 9 in April 2015 and again in July 2016, both of which indicate that he did not request a Board hearing. Regarding the applicability of Special Monthly Compensation (SMC), as will be discussed further below the Veteran does not have a single disability rated at 100 percent with an additional disability rated at 60 percent or more, even when considering TDIU and temporary total ratings. See 38 U.S.C. § 1114(s); see also Bradley v. Peake, 22 Vet. App. 280, 289-90 (2008). In addition, the record does not contain lay or medical evidence indicating that the Veteran is in fact housebound, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. See 38 U.S.C. § 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). Accordingly, the Board will not infer the issue of entitlement to SMC. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. The Veteran maintains that his service-connected disabilities have precluded him from obtaining and maintaining gainful employment for the entire period on appeal Total disability meriting a 100 percent schedular rating exists where a veteran suffers from any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. §§ 3.340(a)(1), 4.15. Where a veteran’s schedular rating has been evaluated at less than 100 percent, total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or to follow a substantially gainful occupation as a result of one or more service-connected disabilities and without regard to advancing age or any nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Under 38 C.F.R. § 4.16(a), a determination concerning unemployability must be made on the basis of service-connected disabilities alone; nonservice-connected disabilities must be disregarded. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Even if the record contains evidence that a veteran’s unemployability is a result of other nonservice-connected factors such as age or nonservice-connected conditions, the Board must still decide, without regard to the nonservice-connected conditions, whether the veteran’s service-connected disabilities are sufficiently incapacitating as to render him unemployable. See id. The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. See 38 C.F.R. § 4.16(b). Total disability will be considered to exist when there is any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. See id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See 38 C.F.R. § 4.16(a); see also Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). The ability to work only a few hours a day or only sporadically does not qualify as an ability to engage in substantially gainful employment. See id. Marginal employment shall generally 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. See 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. See id. Consideration must be given in all claims to the nature of the employment and the reason for termination. See id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. See id. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. See id. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), and in order to deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran’s service-connected disabilities consist of a low back disability (evaluated at 20 percent from August 11, 2010) and post-traumatic stress disorder (PTSD) with major depressive disorder (MDD) associated with his low back disability (evaluated at 70 percent from August 26, 2011). The combined rating is 80 percent from August 26, 2011. Accordingly, the Veteran meets the schedular rating criteria for a TDIU under § 4.16(a) for the entire period on appeal, and the only remaining consideration is whether his service-connected disabilities render him unable to secure and to follow substantially gainful employment. See Moore, 1 Vet. App. at 358-59. For the reasons set forth below, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure and to follow substantially gainful employment consistent with his educational and employment background. Therefore, a TDIU is warranted in this case. Throughout the entire period on appeal, the Veteran has consistently reported that he suffers from chronic low back pain caused by his service-connected low back disability, that this pain has resulted in the Veteran’s service-connected PTSD with MDD, and that a combination of these factors renders the Veteran unable to secure or to follow substantially gainful employment. The Veteran contends that he has not been employed since March 2014, and that he has not been employed full time since December 2009, as a result of his service-connected disabilities. In June 2011, the Veteran reported to his private psychiatrist (Dr. J) that he had received a college degree in education, and that he was working part-time with disabled individuals. In addition, the Veteran indicated on an July 2012 Application for Increased Compensation Based on Unemployability that he had worked with disabled students from 2001 to the present, but that because of his PTSD, he was unable to work any longer. A June 2014 statement submitted by the Veteran’s former employer indicated that the Veteran was last employed in March 2014 as a part-time direct support associate. The Board finds that the Veteran is competent to describe the observable symptoms of his service-connected disabilities, and that his statements have been consistent with each other and with the evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board finds the Veteran’s lay statements to be competent and credible and therefore entitled to probative weight. See id. In addition, Dr. J’s extensive private treatment records from June 2011 through June 2015 generally reflect a disability picture consistent with the Veteran’s lay statements: that the Veteran suffers from constant chronic pain as a result of his service-connected low back disability, that this pain has resulted in the Veteran’s service-connected PTSD with MDD, and that a combination of these factors render the Veteran unable to secure or to follow substantially gainful employment. Dr. J’s records note that the Veteran reported working part-time with disabled students, but that he retired from full-time employment at the age of 62 because he could no longer tolerate working, due to his back pain, depression, fatigue, and inability to cope with employment-related stress. The Veteran reported to Dr. J that his stress had continued to increase, along with his depression and anxiety, and that his ability to cope with stress continued to decline. In November 2013, he reported that he felt like he could not take much stress anymore and that is why he reduced his hours tremendously. In February 2014, the Veteran reported to Dr. J that he intended to quit his part-time job in March 2014 due to the symptoms of his service-connected disabilities, including depression, sleep impairment, agoraphobia, anxiety, irritability, and chronic pain. In May 2014, the Veteran reported to Dr. J that he had resigned from his part-time employment as a result of these symptoms, and that his stress level had subsequently decreased. Dr. J’s private treatment records further indicate that screenings of the Veteran conducted in June 2011 and June 2015 revealed that the Veteran suffers from the following PTSD symptoms: disturbing memories; thoughts and images of his stressful military experience; recurring dreams; heart palpitations; trouble breathing; sweating; avoidance; indecisiveness; feelings of worthlessness; lost energy; anhedonia; fatigue; detached feelings from others; emotional numbness; sleep impairment; irritability; anger; concentration difficulties; hyper-vigilance; and ease of startle. In addition, depression screenings revealed that the Veteran suffered from feelings of sadness, pessimism about the future, failure, disappointment with himself, and a tremendous amount of guilt. As a result, in June 2015, Dr. J diagnosed the Veteran with PTSD, moderate to severe MDD, and panic disorder with agoraphobia, and he also concluded that the Veteran had not been working for the last year due to major occupational impairment. In April 2012, a VA examination report diagnosed the Veteran with PTSD with severe major depressive disorder (MDD) and issued an opinion finding that the Veteran’s service-connected low back disability caused chronic pain which resulted in physical limitations that inhibited his ability to perform certain activities of daily living, as well as a progression of the Veteran’s PTSD and MDD symptoms, including depressed mood; chronic sleep impairment; nightmares; memory impairment; flattened affect; social isolation; lack of motivation; lack of energy; lack of interest in activities; difficulty adapting to stressful circumstances, including work or a worklike setting; and an inability to establish and maintain effective relationships. The VA examiner noted that the Veteran reported that his PTSD and MDD symptoms began two years prior in connection with excessive pain caused by his low back injury. The VA examiner further noted that since separating from the Army, the Veteran had worked with disabled students and reported that his relationship with his supervisor was fair due to periodic arguments about his need to miss work due to his chronic low back pain. The VA examiner found that the Veteran’s level of functioning had been diminished as a consequence of his total mental health status, and that he suffered from occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Board notes that a November 2014 VA examination report found that the Veteran’s psychiatric symptoms would only mildly and occasionally impact his ability to complete work-related tasks during times of significant stress. However, the Board finds that Dr. J’s opinion carefully chronicling the progression of the Veteran’s chronic pain and psychiatric symptoms and their resulting occupational impairment, substantially outweighs the probative value of the 2014 VA examination, largely due to the longevity of the Veteran’s treatment relationship with Dr. J and the recency of his 2015 report. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that Dr. J’s report, combined with the Veteran’s lay statements and the 2012 VA examination also finding occupational impairment, rises to the level of equipoise regarding whether the Veteran’s service-connected disabilities have rendered him unable to secure and to follow substantially gainful employment. (Continued on the next page)   Therefore, in light of the evidence of record demonstrating that the Veteran has been unable to secure or to follow substantially gainful employment, as well as the medical evidence reflecting that his sustained unemployment is related to his service-connected disabilities, the Board finds that a TDIU is warranted for the entire appellate period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert, 1 Vet. App. 49, 55. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel