Citation Nr: 18153869 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-35 281A DATE: November 29, 2018 ORDER From February 2, 2017, entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 30 percent prior to February 2, 2017 and in excess of 70 percent thereafter for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a TDIU prior to February 2, 2017 is remanded. FINDING OF FACT On and after February 2, 2017, the Veteran has been unable to secure or follow substantially gainful employment as a result of his service-connected PTSD. CONCLUSION OF LAW From February 2, 2017, the criteria for a TDIU are met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a June 2018 videoconference hearing. A transcript of this hearing is associated with the record. In an August 2018 private evaluation, a certified vocational rehabilitation counselor found that the Veteran’s service-connected PTSD renders him unemployable. The Veteran presented similar testimony during his June 2018 Board hearing. As such, it follows that a request for TDIU was reasonably raised. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (providing that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). Thus, the Board finds that the Veteran’s claim for TDIU is part and parcel of the increased rating claim and is properly before the Board. 1. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) from February 2, 2017 Total disability ratings for compensation may be assigned 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 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). On and after February 2, 2017, the Veteran is in receipt of a 70 percent disability rating for service-connected PTSD. He thus meets the schedular criteria for a TDIU as provided in 38 C.F.R. § 4.16(a) as there is one disability rated at 60 percent or higher. The only remaining consideration is whether he is unable to secure or follow substantially gainful employment as a result of his service-connected disability. In an August 2018 private evaluation from S.M., a certified vocational rehabilitation counselor, the Veteran’s PTSD symptomatology was indicated to cause “clinically significant distress or impairment in social, occupational, or other important areas of functioning.” These symptoms include difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. The Veteran reported dropping out of high school in the ninth grade and stated he did not obtain a GED. He went to trade school and worked odd jobs until he joined the Army at age 18. The claims file reflects that the Veteran has been unemployed for over 10 years and was receiving Social Security disability. After a review of the claims file and a phone interview with the Veteran, S.M. found the Veteran unemployable in the general labor market. She explained that the Veteran’s overall depressed state of mind impacted his critical thinking and logic in addition to his ability to respond quickly, which would preclude employment in his prior field in a heavy-duty industry. Additionally, the Veteran demonstrated psychomotor retardation and slow thought processes during the phone interview. The treatment records document fatigue and loss of energy with a diminished ability to think or concentrate. S.M. found that these symptoms make it unlikely that the Veteran had the capacity to engage in work-like activities, including getting up for work and sustaining energy throughout the day. Finally, S.M. noted that the Veteran’s anger management issues would not likely be tolerated in the workplace. She found that he does not have the energy or skills to reduce stress to be a productive and effective employee. The Board accords this opinion significant probative weight and finds that the Veteran’s PTSD causes him to be unable to secure or follow substantially gainful employment on and after February 2, 2017. Thus, entitlement to a TDIU is warranted. The Board makes no decision on the question of a TDIU prior to February 2, 2017, as this issue is being remanded for further development. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent prior to February 2, 2017 and in excess of 70 percent thereafter for service-connected posttraumatic stress disorder (PTSD) is remanded. During his June 2018 Board hearing, the Veteran testified that he was in receipt of Social Security Disability Insurance. Unfortunately, no Social Security Administration (SSA) records are associated with the claims file. VA must attempt to obtain relevant records from a Federal department or agency unless further attempts would be futile. These records include medical and other records from the SSA. See 38 C.F.R. § 3.159(c)(2). Therefore, the Board finds that remand is necessary to obtain any outstanding SSA records. 2. Entitlement to a TDIU prior to February 2, 2017 is remanded. The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the adjudication of the above issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Hence, the Board will defer appellate consideration of the issue of entitlement to TDIU pending adjudication of the underlying increased-rating claim for the Veteran’s PTSD. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the SSA, to include any decisions and medical records upon which those decisions were made. Document all requests for information as well as all responses in the claims file. 2. Thereafter, readjudicate the Veteran’s claims, including development and adjudication of the Veteran’s claim for entitlement to TDIU prior to February 2, 2017. 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor