Citation Nr: 18155789 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 08-01 444 DATE: December 6, 2018 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities have prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision. The Veteran’s TDIU claim was previously before the Board in October 2011, when it was remand to the Agency of Original Jurisdiction (AOJ) to provide proper notice to the Veteran and for further development. The issue was then before the Board again in October 2017, which resulted in a decision the Court of Appeals for Veterans Claims (Court) vacated. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided 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. § 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Here, the Veteran meets the schedular percentage requirement for TDIU. He currently has ratings for multiple service-connected disabilities, to include a 30 percent rating for posttraumatic stress disorder (PTSD), 20 percent for residual scars from shrapnel wounds to the left hip, left flank, right calf, and neck, 10 percent for a residual shrapnel wound to the left hip, and 10 percent ratings for degenerative traumatic arthritis to each of his knees with retained shrapnel. These disabilities combine for a rating of 60 percent and are considered one disability for the purpose of TDIU as they share a common combat etiology. 38 C.F.R. § 4.16. The Veteran has additional noncompensable service-connected conditions in his right foot, right calf, left flank, and neck related to the same combat incident. The Veteran was last employed in September 2009 as a mail carrier for the United States Postal Service (USPS). At that time, he accepted early retirement due to the increasing effect his PTSD symptoms were having on his ability to maintain relationships with his coworkers and supervisors. The record shows that he has not been employed since that time. The Veteran has a high school education and had some training as a welder in 1972, though he never completed that course of study. He then worked as a welder for about nine months. Shortly after that time, he began working for the USPS as a mail carrier, his only occupation for the remainder of his career. The record contains no evidence of other training or education that would qualify him to work in another field. The Veteran has asserted he chose to retire early from his job with the USPS as the result of his PTSD symptoms. He first sought treatment for his mental health in 2006 at a VA medical center. Treatment records show signs of anxiety leading up to an initial assessment in October 2006 that diagnosed PTSD with chronic mild symptoms of hypervigilance, anxiety, avoidance behavior, and distress related to intrusive thoughts related to his service in Vietnam, as well as related alcohol abuse. An October 2007 VA examination confirmed the PTSD diagnosis, with secondary diagnoses of depressive disorder and alcohol abuse. In addition to previously reported symptoms, the examiner noted signs of an exaggerated startle response, specifically noting the Veteran threatened to assault co-workers who startled him. At the time, the Veteran’s PTSD was not interfering significantly with his occupational functioning, though a flare-up of symptoms was causing a decline in social relationships. VA treatment records leading up to his retirement show the Veteran’s PTSD symptoms became more pronounced due to what he described as increasing stresses related to new processes at his job and conflicts with co-workers. Eventually, the Veteran chose to take six weeks of leave from work. A June 2009 Family and Medical Leave Act certification form from the Veteran’s VA psychologist indicated that he did not expect the Veteran to miss much additional work, describing the Veteran’s condition as an acute flare-up of PTSD symptoms, though noting that PTSD symptoms are difficult to predict. The Veteran ultimately chose to leave his position. A May 2012 VA examination report indicates that the Veteran began to show depression symptoms intertwined with alcohol consumption and worsening PTSD symptoms. The Veteran reported difficulty sleeping, memory and concentration problems, and poor social interactions. The examiner indicated the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. In the time since, treatment records have continued to note consistent PTSD symptoms, most notably anxiety and associated obsessive behavior, that inhibit social functioning. The Veteran’s physical combat injuries were well documented in service and have been subject to treatment by VA intermittently in the time since his discharge. Degenerative changes in the Veteran’s knees were first noted in treatment x-rays from April 2007, and further examination showed shrapnel residuals in both knees, neck, left flank, and right calf. Decreased range of motion was noted in the Veteran’s left hip. An August 2010 VA examination reported complaints of pain, weakness, and stiffness in both knees, with increasing pain on physical activity such as climbing stairs. Both knees were reported painful on motion with flare-ups that lead to additional pain and weakness. The Veteran also reported pain, weakness, and fatigability related to his right foot injury, status post fusion of great toe, at rest, on standing, and with walking. The examiner noted the Veteran’s toe had some effect on his ability to function in his usual occupation due to pain when walking. The examiner further noted that shrapnel scars on the Veteran’s neck, left hip, left flank, and right calf were tender to touch and painful. Regarding the hip scar, the examiner noted the scar was painful when rubbing against clothing or mail bag during prior occupational activity. Ultimately, the examiner opined that none of the Veteran’s conditions would have affected his employability in physical or sedentary occupations, though no further rationale was provided. Subsequent VA examinations in April 2012 for the Veteran’s knees and hip indicated his conditions had worsened and determined the Veteran’s right knee and left hip would cause him to have a hard time maintaining gainful employment in a physical or sedentary environment. This conclusion was based on a diagnosis of residuals of shrapnel wounds with degenerative joint disease in the knees and hip, which caused daily pain and increased pain with ambulation. The Veteran also reported his right knee had further weakened, giving out about once per week. He indicated that his left hip condition had also continued to worsen with frequent flare-ups, preventing him from making full strides while walking. The Veteran’s lay statements indicate that his initial decision to leave his employment at the USPS was primarily motivated by his PTSD symptoms. He had intended to continue working several more years to qualify for full retirement benefits, but his inability to cope with stress at work and maintain stable professional relationships led him to retire early. He has also stated his service-connected disabilities interfered with his ability to perform his job to even minimal standards leading up to his retirement. An October 2018 Individual Unemployability Assessment provided by a private Vocational Rehabilitation Counselor, K.R.S., concluded that the Veteran is at least as likely as not precluded from working because of his limitations arising from his service-connected conditions. The counselor, after a thorough review of the Veteran’s medical and occupational record, determined that the combination of physical and psychological impairments presented by the Veteran’s conditions would negatively impact his performance to a degree that he would be unable to return to full-time gainful employment. In conclusion, resolving reasonable doubt in the Veteran’s favor, the Board finds it is at least as likely as not that his service-connected disabilities have prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (indicating a claimant does not have to be 100 percent unemployable in order to be entitled to TDIU). Therefore, the Board finds TDIU is warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Pitman, Associate Counsel