Citation Nr: 18155656 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-40 749 DATE: December 4, 2018 ORDER Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran has been rendered unemployable due to his service-connected disabilities. CONCLUSION OF LAW The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1958 to August 1978. The Veteran asserts that he is precluded from obtaining or maintaining substantially gainful employment, specifically as a result of his service-connected posttraumatic stress disorder (PTSD) and right knee disability. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran is service-connected for PTSD rated as 30 percent disabling prior to February 27, 2007, temporary total (100 percent) from February 27, 2007 to through March 31, 2015, and 70 percent from April 1, 2015, forward; migraine headaches rated as 30 percent disabling; right knee arthroplasty rated as temporary total (100 percent) prior to December 1, 2016 and 30 percent thereafter; tinnitus rated as 10 percent disabling effective July 15, 2005; right knee degenerative joint disease rated as 10 percent disabling from October 7, 2010 to October 20, 2015; lumbar spine degenerative joint disease rated as 10 percent disabling effective October 7, 2010; and, a right patella scar rated as noncompensable. The appeal comes to the Board form a September 2014 formal application for a TDIU. The Veteran’s combined rating of 90 percent has been in effect throughout the appeal period. He meets the schedular criteria for a TDIU. The question remains, however, whether the Veteran has been precluded from obtaining and maintaining a substantially gainful occupation as a result of his service-connected disabilities. Turning to the evidence, in his September 2014 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran stated that he was unable to work due to his PTSD and knees. He further noted that he had four years of college and received a Bachelor of education degree. Private treatment records dated in April 2015 noted that the Veteran had stiffness with activity and pain when he walked more than ten steps. An MRI revealed degenerative changes most significantly patella-femoral. The assessment was internal derangement of posterior horn of medial meniscus, chondromalacia, and synovitis o the knee. During a March 2015 VA examination for his service-connected right knee, it was noted that the Veteran had a right knee diagnostic arthroscopy with medial femoral condyle chondroplasty and limited synovial debridement and received injections, which helped with the symptoms for several months, but symptoms returned after. The Veteran reported symptoms of pain, swelling, cracking, popping, and giving way. He further stated that his lifestyle changed due to restricted activity as a result of his right knee. The examiner opined that it was less likely than not that the Veteran’s service-connected degenerative joint disease of the right knee negatively impacted his ability to function in an occupational environment. The examiner explained that the Veteran “can do many sedentary jobs” and the right knee disability did not prevent “engaging in sedentary activities and use of the hands.” During a March 2015 VA examination for PTSD, the examiner identified PTSD symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in stablishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; suicidal ideation; irritability; and, rumination. The examiner stated that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. The examiner opined that based on review of the claims file and interview of the Veteran, the above-mentioned symptoms all appeared to impact negatively and impair the Veteran’s social and occupational functioning. The examiner added that it appeared that his depression and anxiety symptoms of PTSD may have increased in severity due to his reported increasing physical limitation. In a correspondence received by VA in May 2015, the Veteran described difficulties with his PTSD and stated that he last work in June 1995 as a teacher, and even at that time, he got paid for six months despite his inability to teach. Private treatment records dated in September 2015 noted that the Veteran was examined to make a plan for a right knee surgery, and VA treatment records in October 2015 showed that he underwent a total right knee replacement surgery. VA treatment records dated from December 2015 to March 2016 noted that the Veteran was continuously frustrated with the fact that his claim for unemployability was denied and could not understand how the VA assumed that someone his age can be employable. In March 2016, the mental health professional noted that the Veteran’s depression was keeping him from enjoying anything, and while he reported that he just tapped his trees for maple syrup sugaring, he felt like he was just going through the motions. The mental health professional further noted that the Veteran was frustrated and on the verge of giving up, but otherwise, his mental status was within normal limits, and he was not suicidal or homicidal. During this time period the Veteran was diagnosed with depressive disorder, dysthymic disorder, and PTSD. In June 2016, the RO obtained a medical opinion regarding the Veteran’s ability to work due to his service-connected right knee disability and PTSD. Regarding PTSD, a VA psychologist opined that after reviewing the claims file, the mental health treatment records did not indicate any change/worsening of his PTSD symptoms, and focus on the most recent mental health treatment records appeared to be on the Veteran’s frustration with the processing of his claim for unemployability. The VA psychologist concluded that there was no evidence in the records to support the conclusion that the Veteran’s PTSD alone prevented him from engaging in active or sedentary employment activities. The June 2016 VA nurse practitioner indicated that the March 2015 VA examiner opined that the Veteran’s right knee disability less likely than not impacted his ability to work. The nurse practitioner further stated that the Veteran underwent a total knee arthroplasty in October 2015. After a complete review of the claims file, the nurse practitioner opined that the evidence as a whole, to include the new evidence of the Veteran’s knee surgery, his disability impacted his ability to perform any type of physically laborious job, but would not impact his ability to work “in a sedentary capacity.” In his June 2016 substantive appeal, the Veteran stated that he could not mix in groups or complete tasks he started. He further noted that teaching was hard for him and he had to leave his job to receive mental health treatment. During a November 2016 DRO hearing, the Veteran testified that he had a right knee replacement, but there were still times it was painful, which limited what he could do and for how long. He further stated that for his service-connected lumbar spine disability required the use of a TENS machine, a little electric stimulator, and muscle relaxants. He further stated that for a few years he was contemplating if he should undergo a surgery for his back, but still did not decide if he wanted to do it. He indicated that contrary to the VA examiner’s opinions, he could not sit or walk for a job and could no longer work with students or service clubs because he just could not handle it. He stated that he tried to avoid stress, but it still just happened, unexpected noise made him jittery, and he had little to no attention span. He noted that most of the time he did not finish what he started, had a short-fuse, and had no patience. In a January 2017 employability focused psychological evaluation, the Veteran’s treating licensed clinical psychologist indicated that she knew the Veteran well after providing him with 89 psychotherapy sessions over the years. The psychologist noted that the Veteran was diagnosed with PTSD and persistent depressive disorder. The psychologist explained that she reviewed the Veteran’s knowledge, skills, and abilities (KSAs) of his career job, to determine whether he was capable of performing them at this time. It was explained that the Veteran’s only work experience was as a teacher, which required ability to understand subject matter and use teaching strategies; possessing sufficient sensory function to develop and maintain awareness of all students in the classroom and sufficient motor function to move about the classroom; demonstrating the emotional stability required for full utilization of intellectual abilities and judgment; developing rapport with students and relationships with others in the school; and, demonstrating flexibility and adaptability in the fact of uncertainties inherent in the functioning of school and classrooms. The psychologist concluded that the results of comparing the necessary functions with the Veteran’s abilities showed that his ability to function in his previous profession of teaching was profoundly limited. The psychologist further stated, “One would think that at the age of 76 he would be considered “unemployable” by his age alone,” but based on the evaluation, it was evident that the Veteran was limited in the tasks that are necessary to teach in a classroom. The psychologist concluded that the Veteran was considered unemployable as a teacher. During a September 2017 VA examination for the Veteran’s right knee, the examiner stated that the Veteran’s disability impacted his ability to perform any occupational tasks due to difficulty standing and walking being “on a decline” and the Veteran’s susceptibility to falls. The Board affords great probative value to the medical and lay evidence summarized above competently and credibly documenting the Veteran’s functional impairments due to his service-connected symptoms. He competently and credibly has reported the degree and frequency of his observable, service-connected symptoms and consequent impairments, such as: knee and back pain that impacted his ambulation and lack of concentration, short attention span, impatience, and irritability as a result of his PTSD. After careful consideration of the record, to include both the lay and medical evidence, the Board resolves all doubt in the Veteran’s favor, finding that he is unemployable by reason of his service-connected disabilities. The Board recognizes that throughout the appeal, VA examiners opined that his service-connected conditions, specifically his right knee and PTSD would not impact his ability to work. However, those findings were very conclusory and did not thoroughly explained what type of jobs the Veteran could actually perform, but instead stated that he could engage in “sedentary activities” and jobs that required the “use of the hands.” Also, those findings were merely speculative, as they failed to consider the Veteran’s functional impairments in light of his actual employment background since his discharge from service, entirely at a teaching position. Considering the evidence as a whole, specifically the January 2017 VA psychologist’s opinion, the Board agrees that the could not realistically or feasibly perform the duties required for his prior position as a teacher, which comprised his entire, decades-long career. Between the general restriction on his physical activities due to his right knee and back disabilities and the specific restrictions due PTSD, he simply could not perform his prior work. While it could perhaps be argued the Veteran retains the capacity to work in a “light duty” position, he does not have the necessary training or background that would potentially allow him to obtain substantial gainful employment in such a position. All his work experience, has required physical activities such walking and standing in a classroom and interacting with students and other faculty on a regular basis, which are directly impacted by his right knee, back, and PTSD disabilities. Therefore, considering the Veteran’s occupational and educational background – including the fact that he always worked as a teacher, it strains credulity to expect that he would qualify for a “light duty” position. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Accordingly, affording the Veteran the benefit of the doubt, entitlement to a TDIU is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel