Citation Nr: 18161165 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-30 551 DATE: December 28, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The evidence of record shows that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to September 1976, August 1987 to December 1987, November 1990 to August 1991, and February 2003 and December 2003 with additional service in the Puerto Rico National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2018, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. 1. Entitlement to a TDIU. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran asserts entitlement to a TDIU based upon his service-connected disabilities. In this regard, he is service-connected for major depressive disorder (MDD), currently evaluated as 70 percent, tinea versicolor at 30 percent, sprained right ankle at 10 percent, arterial hypertension at 10 percent, left inguinal entrapment neuropathy at 10 percent, status-post left indirect inguinal hernia repair at zero percent, and status-post umbilical hernia repair at zero percent. He therefore meets the schedular criteria. Thus, the question is whether the Veteran’s service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. For the reasons set forth below, the Board finds that the evidence of record indicates that the Veteran’s service-connected MDD has rendered him unable to secure or follow substantially gainful employment. The record shows that the Veteran was employed as a letter carrier from 1995 for the United States Postal Service (USPS). See, e.g., the VA joints examination dated January 2007. VA treatment records dated in April 2010 indicate that the Veteran exhibited paranoid ideation; specifically, he claimed that others at work were trying to make his life impossible and that he felt they wanted to use him all of the time. VA treatment records dated in February 2011 documented the Veteran’s report that he wants to kill his boss due to changes at work. He stated that his workload has been increased and he is not able to complete his work; he has therefore been written-up at work. The Veteran was afforded a VA psychological examination in May 2011 at which time he reported that he “has gotten into trouble because of angry, verbal outbursts.” Although he remained employed with the USPS, the Veteran indicated that he had been on suspension since February 2011. He explained this suspension was because he “is dangerous to his coworkers.” The May 2011 VA examiner indicated that the Veteran’s psychological symptoms manifested in deficiencies in most areas including judgment, thinking, family relations, work, mood, or school. The Veteran submitted an Application for Increased Compensation Based on Unemployability in September 2011; at which time he reported that he last worked at the USPS in February 2011 and could no longer work due to his service-connected MDD. The Veteran explained, “[d]ue to constant feelings of stress, I have been [having] a lot of problems with my employment. I was suspended because of ‘behavioral problems,’ and I have difficulty communicating with others. It’s hard for me to leave my home because of the depression and anxiety.” A VA psychological examination conducted in January 2012 documented the Veteran’s good social functioning with family and friends. The examiner reported that the Veteran is applying for medical retirement; however, the January 2012 VA examiner failed to address the Veteran’s history of disciplinary suspension from work in 2011. The examiner did report that the Veteran experiences difficulty in adapting to stressful circumstances, including work or a work-like setting. In his April 2012 notice of disagreement (NOD), the Veteran explained that he stopped working for the USPS following his suspension in February 2011. He stated that he was paid out on his sick leave and vacation days through October 2011. He was approved for retirement in December 2011. See the NOD dated April 2012. The Veteran was afforded a VA psychological examination in March 2014 at which time the examiner reported that the Veteran’s psychological symptoms manifest in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The examiner explained that the Veteran finds it difficult to maintain a job as he becomes easily agitated and would get into trouble because of his anger. The examiner reported that the Veteran has difficulty in establishing and maintaining effective work and social relationships, as well as difficulty in adapting to stressful circumstances, including work or a work-like setting. The above evidence clearly reflects that the Veteran’s MDD has a significant impact on his ability to work. Although some health care professionals have opined that the Veteran’s psychological symptoms do not render him unemployable, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Id. at 1354. Given the significant effects of the Veteran’s psychiatric symptoms and his documented difficulty maintaining gainful employment as indicated by the lay and medical evidence, the evidence is approximately evenly balanced as to whether his service connected MDD renders him unable to secure and follow substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel