Citation Nr: 18153404 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 14-34 095 DATE: November 27, 2018 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence demonstrates that his service-connected disabilities preclude him from securing and following any substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1997 to August 1997, April 1998 to April 2001, and December 2003 to February 2005. The Veteran also served in the Army National Guard. This matter come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran contends that his service-connected disabilities, including his post-traumatic stress disorder (PTSD), the residuals from his traumatic brain injury (TBI), his left ankle injury, and his pericarditis prevent him from securing and following any substantially gainful occupation. See September 2014 VA Form 21-8940. As discussed below, the Board finds that resolving all reasonable doubt in favor of the Veteran, a TDIU is warranted. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one. That determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners’ conclusions are not dispositive. However, the observations of the VA examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. The Veteran currently has the five service-connected. Those disabilities are PTSD (rated as 30 percent disabling prior to June 18, 2015, and as 50 percent disabling thereafter), residuals of TBI (40 percent), a left ankle injury (10 percent), tinnitus (10 percent), and pericarditis (10 percent). He has a combined evaluation of 70 percent prior to June 18, 2015, and a combined evaluation of 80 percent from this date. Therefore, the schedular criteria under 4.16(a) have been satisfied. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran’s employment history consists exclusively of physical labor positions. The Veteran was previously employed as a stock boy, a carpet layer, a cook, a driver, and a carpenter. The Veteran was most recently employed full-time as a bricklayer, from February 2005 to December 2007. The Veteran reported missing four months within the last year of this employment due to his TBI symptoms. The Veteran stated that he experienced headaches, dizziness, memory problems, and had difficulty with blueprints, which greatly hindered his employment capabilities in the construction field. The Veteran has not worked since December 2007. The Veteran completed approximately two years of college, but reported that he was unable to continue due to his TBI symptoms. Resolving all doubt in favor of the Veteran, the record shows that the Veteran is unable to work due to his PTSD and TBI symptoms, as well as his left ankle injury and pericarditis. The Board finds that the following evidence is the most probative in support of the Veteran’s claim for a TDIU. Left Ankle Injury In a May 2014 VA examination report for the Veteran’s left ankle injury, the VA examiner stated that the Veteran’s left ankle injury would prevent heavy physical employment requiring prolonged ambulation or standing, but it would not limit light to moderate physical or sedentary employment. Pericarditis In a July 2011 VA examination report for the Veteran’s heart disability, a VA examiner stated that it would be difficult due to the erratic nature the Veteran’s pericarditis for the Veteran to obtain or maintain a physically active work load. However, sedentary employment seemed possible, though the Veteran’s pericarditis may cause difficulties with attendance. PTSD On an August 2011 mental residual functional capacity assessment conducted in conjunction with the Veteran’s claim for Social Security Administration disability benefits, a private examiner noted the Veteran’s PTSD diagnosis. The examiner opined that the Veteran should avoid work that requires constant attention to detail, such as assembly line or data processing. According to the examiner, the Veteran should also avoid working in close proximity to co-workers and supervisors along with direct contact with the public. The examiner further commented that the Veteran should avoid distracting, busy, and noisy work environments. During a June 2015 VA examination for PTSD, the VA examiner documented the Veteran’s multiple PTSD symptoms. The examiner noted the Veteran’s symptoms to include a depressed mood, anxiety, suspiciousness, panic attacks three times per week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, periods of self-isolation, episodes of “spacing out” that likely represent mild dissociation, difficulty in adapting to stressful circumstances, including work a worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran reported having been in physical altercations since his return from Iraq. During the June 2015 VA examination for PTSD, the Veteran reported that he suffered from several of his PTSD symptoms while working as a bricklayer. The Veteran stated that his symptoms made it extremely difficult to complete the requirements of the position because he had several panic attacks and flashbacks throughout the work day, which required several breaks. These panic attacks and flashbacks were often triggered by jobsite noises. The Veteran also discussed his memory issues and his inability to focus in order to complete tasks during the June 2015 VA examination. The examiner stated it was unclear whether the Veteran’s memory problems were the result of his TBI or from the intrusive thoughts attributed to PTSD. In the June 2015 VA examination report, the VA examiner opined that the Veteran would work best with a job task that allowed independent performance (with minimal interpersonal contact), with flexibility in when the task was completed, and with minimal risk for harm or danger to self or others if the task or related processes were left in operation or in a state of partial completion for periods of time. Additional VA medical records reflect additional reported symptoms and findings consistent with those found on the June 2015 VA PTSD examination. In an April 2013 medical record, the Veteran stated that anxiety prevents him from working. He had blackouts, seizures, and distress related to noise, crowded places, and driving. These records also document that the Veteran sought in-patient treatment for his PTSD in April 2014 and in June 2015 after suicide attempts. The Veteran’s wife provided a March 2015 lay statement in which she described the Veteran as severely antisocial. The Veteran avoids crowds, is anxious, and depressed. The Veteran does not sleep well and has trouble remembering everyday tasks, such as taking his pills and turning off burners and water after use. TBI In a May 2014 VA examination report, an examiner discussed the symptoms associated with the Veteran’s residuals of a TBI, identified as frequent migraines. According to the examination report, the Veteran regularly experiences nausea, vomiting, and sensitivity to light and sound. The Veteran’s migraines usually last from 1-2 days. The VA examiner also stated that the Veteran’s trouble with concentrating interferes with his activities, including his ability to work. Analysis Review of the evidence of record in a light most favorable to the Veteran indicates that his service-connected disability, collectively, prevent him from securing and maintaining gainful employment. As stated above, examiners have commented that the symptoms associated with the Veteran’s PTSD and residual TBI result in concentration and memory impairment, anxiety, impaired impulse control, and other social impairments that negatively impact his employability. Moreover, he is precluded from jobs involving physical labor, as his left ankle disability and pericarditis prevent employment requiring physically active labor, prolonged ambulation or standing. To the extent that examiners commented on the Veteran’s ability to perform sedentary employment, there is no indication that the Veteran has experience or sufficient training for work in such a position. Further, the Veteran’s PTSD and TBI symptomatology would impair his ability to concentrate and work with others, which would make sedentary employment difficult. Based on the foregoing, the Board finds that the preponderance of the evidence indicates that the Veteran’s service-connected disabilities preclude him from securing and following any substantially gainful employment. Therefore, resolving all reasonable doubt in favor of the Veteran, his claim for a TDIU is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel