Citation Nr: 18155692 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 11-25 382 DATE: December 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 13, 2008 is granted. FINDINGS OF FACT Prior to March 13, 2008, the Veteran’s service-connected disabilities, particularly his major depressive disorder, prevented him from securing or following substantially gainful employment; he engaged only in marginal employment during this time period. His condition was manifested by occupational and social impairment with deficiencies in most areas due to such symptoms as panic attacks; slow thought process; difficulty with attention and concentration; difficulty in adapting to stressful circumstances; avoidance of social interaction with anyone; a severe inability to establish and maintain effective relationships; and suicidal ideation. CONCLUSION OF LAW The criteria for TDIU prior to March 13, 2008 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1980 to May 1986. The issues are on appeal from November 2009 August 2011 rating decisions. The Board of Veterans’ Appeals (Board) notes that in the August 2011 rating decision the Veteran was granted TDIU effective March 13, 2008. As such, his claim for TDIU for the period after March 13, 2008 is moot. However, the Board recognizes that VA has a “well-established” duty to maximize a claimant’s benefits. AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, as the record reflects that the Veteran’s employability was affected by his service-connected disabilities, in particular his major depressive disorder, the claim for entitlement to TDIU prior to March 13, 2008 is currently before the Board as reflected on the title page. Entitlement to TDIU prior to March 13, 2008 The Veteran contends that he is entitled to TDIU prior to March 13, 2008 as he worked in a “protected environment.” On his November 2017 VA Form 21-8940, he wrote that his father-in-law was his direct supervisor and after the father-in-law retired, the Veteran did not get along with his new supervisor. This caused the Veteran to transfer from the West Coast to the East Coast within the same company, until he left due to his ongoing depression issues in 2002. TDIU 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment. See 38 C.F.R. § 4.16(a). 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). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19, Van Hoose v. Brown, 4 Vet. App. 361 (1993). The term “unemployability” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran’s service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. Ap. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran’s service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Marginal employment is not considered substantially gainful employment and generally is 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 held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop). Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17(a) (2017). Whether a veteran is capable of more than marginal employment must be considered. Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Here, the Veteran’s disabilities met the schedular criteria for entitlement to a TDIU rating from May 1986 to April 1993; and beginning from May 1993, based on his service-connected major depressive disorder rated at 70 percent and tinnitus rated at 10 percent, with a cumulative disability rating of 70 percent for each period. Between April 1993 to May 1993, the Veteran was entitled to a 100 percent disability for his major depressive disorder. The Board notes that TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating renders moot the issue of entitlement to TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52,375 (1999). Therefore, the period between April 1993 and May 1993 will not be discussed. VA treatment notes showed that the Veteran’s major depressive disorder symptoms manifested in extremely slow and resistant thought process, significant anxiety with panic attacks while overwhelmed, and decreased attention and concentration. Notably, a November 1987 Periodic Physical Exam stated that the although the Veteran was able to perform part-time work as a maintenance man for various businesses between March 1986 to November 1987, he was unable to continue working due to, in part, his unpredictable moods. The Veteran has been receiving Social Security Disability due to depression and physical impairments that were the result of a workplace accident in April 2002. The Board notes that the Veteran is not service-connected for any of the physical impairments. Findings by the Social Security Administration noted that depression was inclusive of the disabilities that led to the Veteran having only a residual functional capacity to perform unskilled low stress work; performing sustained work activities in an ordinary work setting on a regular and continuing basis; being able to understand, carry out, and remember simple instructions; and appropriate response to supervision, coworkers, and usual work situations. A private psychiatrist, Dr. M.C., interviewed the Veteran in November 2013. Dr. M.C. wrote that he reviewed the Veteran’s medical records, service records, and ancillary information in preparation for the interview. He opined that the Veteran’s major depression disorder symptoms from May 1986 to March 2008 were equally as disabling as they were from March 2008 to the present. Symptoms included severe neurovegetative symptoms of depression, ongoing suicidal ideation, anhedonia, hopelessness, helplessness, and despair. The Veteran was described as nonfunctioning and shattered. Dr. M.C. wrote that although the Veteran worked between 1986 to 2002, his depressive symptoms led him to have great difficulty managing in an environment where he was not socially isolated; and he chose jobs where he could avoid others, evade social interactions, and possibly die on the job. Further, Dr. M.C. stated that the Veteran’s physical disabilities from a workplace injury in 2002 were not related to his major depressive disorder as medical records proved that the Veteran’s depression began much earlier in 1985, while the Veteran was still in service and years before the workplace injury occurred. In October 2016, the Veteran was interviewed by another private psychiatrist, Dr. B.C. Upon thorough review of the Veteran’s medical records and lay statements, Dr. B.C. opined that the Veteran’s psychiatric symptoms were totally socially and occupationally impairing by 1986, and thus he was fully disabled since then. From 1986 until 2002, the Veteran worked, but Dr. B.C. stated that the Veteran could only manage continuing his employment by resorting to extreme measures such as purposeful isolation from others, and relying on his father-in-law as his supervisor to protect him from the complaints of co-workers. She opined that the Veteran had profoundly impaired levels of functioning despite multiple efforts at seeking psychiatric treatment since 1986. The Veteran submitted a VA Form 21-8940 in November 2017 explaining that he worked for Baader North America Corp. as a fisherman/technician from January 1988 to December 2002. He earned a high school diploma and received U.S. Navy Steam Propulsion training during service. As detailed above, the Veteran explained that his father-in-law was his supervisor and after his retirement in 1998 or 1999, the Veteran did not get along well with the replacement supervisor. The adversarial nature of the relationship between the Veteran and the replacement supervisor caused the Veteran to move from the West Coast to the East Coast. He ultimately quit his job due to his ongoing depression, difficulty getting along with others, and trouble concentrating on tasks. He had also attempted to take computer classes through Vocational Rehabilitation & Employment but discontinued the classes as he could not focus on the tasks. In December 2017, the Veteran’s former employer, Baader North America Corp. submitted a completed VA Form 21-4192. It stated that the Veteran was employed as a service technician and was terminated due to a workforce reduction in 2002. Further, it wrote that it was unknown whether any concessions had been made for the Veteran due to his disability. The Veteran does not allege that his salary was so low so as to fall below the poverty threshold. He also does not allege working in a sheltered workshop. The Board notes that the term “sheltered workshop” is not defined in the regulations, but the Department of Labor uses the term to mean a place that has historically provided rehabilitation services, day treatment, training, and/or employment opportunities to individuals with disabilities. Sheltered Workshop, Department of Labor, Wage & Hour Division, Field Operations Handbook, available at http://www.dol.gov/whd/FOH/ch64/64k00.htm (last accessed 12/3/2018). Based on this definition, it does not appear that the Veteran’s position qualified as a “sheltered workshop.” There is no indication that the accommodations provided were part of a program of rehabilitation services or training, although the Veteran felt that his employing company was more willing to work with his limitations as long as his father-in-law was his supervisor. The accommodations provided are relevant to the inquiry, insofar as they raise the issue of whether he would be able to find similarly situated employment that was also substantially gainful (or, not marginal). As mentioned, the Veteran was employed by the same company for 16 years. In multiple statements and during the course of treatment for his service-connected major depressive disorder, the Veteran expressed that he was protected from the complaints of his co-workers because of his father-in-law’s role. However, after his father-in-law retired, the Veteran felt forced to go to extreme lengths to deal with his major depressive disorder symptoms and maintain employment, including choosing jobs that allowed him to avoid social interaction and had the potential to lead to death. Private, VA, and SSA treatment notes all observed how the Veteran was unable to focus or maintain attention, had slow cognition skills, suffered from panic attacks, and had a severe desire to avoid social interaction Based on the medical and lay evidence outlined above, the Board finds that the Veteran’s employment since May 8, 1986 is employment conducted in a “protected environment,” and therefore is considered “marginal” for purposes of entitlement to TDIU under 38 C.F.R. § 4.16. The Board emphasizes that this is being accomplished by the Board on a facts-found basis given the record before the Board in this case. Accordingly, the Board finds that, based on the foregoing and affording the Veteran the benefit of the doubt, the grant of an earlier effective date of May 8, 1986 for the award of TDIU is warranted. 38 C.F.R. § 3.102; 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel