Citation Nr: 1819085 Decision Date: 03/30/18 Archive Date: 04/05/18 DOCKET NO. 00-02 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) from June 17, 1999 through January 4, 2007. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1966 to March 1968, and from March 1972 to February 1986. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2017 Order of the United States Court of Appeals for Veterans' Claims (Court). The appeal originated from a July 1998 rating decision of the RO in Columbia, South Carolina. In a decision dated in January 2012, the Board granted a 100 percent rating for posttraumatic stress disorder (PTSD) for the period from January 5, 2007 through April 24, 2007, but denied a 100 percent rating for PTSD during the period from June 17, 1999 through January 4, 2007. The Veteran appealed that decision to the Court. In a memorandum decision dated in August 2013, the Court vacated the Board's August 2013 decision, but only to the extent the Board did not address the question of TDIU entitlement from June 17, 1999 through January 4, 2007, and remanded the issue back to the Board to address that issue. In February 2014, the Board remanded this appeal to the RO for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. In a decision dated in June 2015, the Board denied the issue on appeal herein. The Veteran appealed to the Court, which vacated the Board decision and remanded the issue back to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT From June 17, 1999 through January 4, 2007, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW From June 17, 1999 through January 4, 2007, the criteria for TDIU were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks a total disability rating based upon individual unemployability for the period from June 17, 1999 through January 4, 2007. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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 service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Individual unemployability must be determined without regard to any non-service connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, during the period under consideration, the Veteran was in receipt of a 90 percent combined disability rating due to the following service-connected disabilities: PTSD (70 percent), diabetes mellitus (40 percent), and gout (20 percent), as well as hypertension, peripheral neuropathy of the right lower extremity, and peripheral neuropathy of the left lower extremity (each 10 percent). Noncompensable service-connected disabilities included hemorrhoids with anal fissure, hemolytic anemia, and periodontal disease. Thus, from June 17, 1999 through January 4, 2007, the percentage requirements for consideration of a schedular TDIU were met. The question before the Board is whether the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities from June 17, 1999 through January 4, 2007. After a review of all of the evidence, the Board finds that, during the period under consideration here, the Veteran's service-connected disabilities did render him unable to obtain or maintain substantially gainful employment. Prior to January 4, 2007, the Veteran was employed on a full-time basis (40 hour per week) at the same job he had been performing for the prior 15 years. He left that job on June 29, 2007. At no time during the appeal period was the Veteran actually unemployed. The Veteran is seeking retrospective benefits for a period of time during which he was actually employed on a full-time basis. In Faust v. West, 13 Vet. App. 342 (2000), the Court held that where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). The term "substantially gainful occupation" is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). The Veteran's income was not below the poverty threshold during the period under consideration. He reported to the RO that he earned $38,000.00 in 2006. The poverty threshold for one person was $10,294 in 2006, and $10,590 in 2007. See http:// www.census.gov/hhes/www/poverty/data/threshld/thresh06.html and http:// www.census.gov/hhes/www/poverty/data/threshld/thresh07.html (both last visited June 22, 2015). Rather, the Veteran contends that his employment was in a "protected environment." In support of this assertion he noted that he took a demotion in 1992 because he was unable to cope with the stress of his previous supervisory position, and because of the demotion, he was allowed to work "alone in a back office" where he could avoid people. He noted that his manager recommended that an 8-foot partition be built around his area so that he would not see people walk past. He also noted that he modified his work schedule to avoid contact with people, that a psychiatric nurse practitioner recommended that he take an extended leave of absence because he was unable to sustain his then-current state of psychological stressors, and that, because of the stress caused by work, he took all his annual and sick leave to avoid work, and after he was no longer allowed to work a modified schedule, he took disability retirement. The Board has reviewed the clinical evidence pertinent to the period on appeal. The report of a VA examination in June 1999 reveals that, after leaving military service, the Veteran was employed by the VA RO in Montgomery, Alabama. From 1986 until 1992, he worked as a personnel supervisor. However, in 1992, he took a downgraded position as a correspondence clerk because he could not take the stress of the supervisory position. In the new position, he was able to work alone in a back office. He liked this situation as it limited his contact with people. The examiner noted that the Veteran appeared unable to relate to others in a work setting and had difficulties tolerating the stressors and pressures associated with day-to-day work activities; however, he was able to sustain the attention needed to do repetitive tasks. While the examiner found some impairment in attention, concentration, and memory, the Veteran's intellectual functioning was estimated to be in the high-average range. The examiner assigned a GAF score of 51. The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers). As this case was pending before the Board before August 4, 2014, the DSM-IV and GAF scores are applicable. The report of a VA examination in July 2000 reveals that the Veteran was still working at the Montgomery RO in the role of correspondence clerk. The Veteran reported a significant difficulty getting along with his coworkers. He was able to work, and was doing well, as long as he was left entirely by himself. He noted that he got along okay with his former supervisor, but had recently been assigned a new supervisor. He reported he had not had any confrontations with the new supervisor and was not certain about how they would get along. He was noted to be easily irritated by interactions with other people. He reported he had wanted to get into physical fights with coworkers, but this had not happened. He had expressed thoughts of harming and killing his coworkers. He expressed uncertainty about his ability to control these thoughts. The examiner noted that, it is very difficult to predict the occurrence of violence; nevertheless, there are several factors which suggest that the Veteran may not act out on his violent threats. These include the fact that he was well aware of the consequences of his actions, he was extremely proud of his children and was aware of the consequences for them, he did not have access to a gun at work, and he had not acted out violently at work in the past. Nevertheless, the Veteran was found to have significant difficulties controlling his anger and therefore it was not possible to say with certainty that he would never act on these impulses. The Veteran's social and vocational functioning was assessed as mildly to moderately impaired and his symptoms were of moderate intensity. The GAF score was 53. In January 2018, the Veteran submitted two reports of private vocational assessments. The first dated November 10, 2017 by K.A.S., a certified rehabilitation counselor. The report noted the examiner interviewed the Veteran telephonically in October 2017. The counselor opined that it is at least as likely as not that, from 1996 to 2006, the Veteran was working in a "protected work environment" and was not working competitively in substantially gainful activity owing to the unprecedented, individualized accommodations afforded to the Veteran in that he was able to work in complete isolation and make his own work schedule. The counselor reasoned that the work accommodations were unreasonable in that the Veteran was allowed to work off hours in the early morning and evening, able to work alone, and he was able to leave work early when he became frustrated or irritable without discipline or penalty. The second report of a private vocational assessment was dated October 30 2017 and authored by C.E., a certified rehabilitation counselor. This counselor opined that the Veteran was more likely than not unable to secure and follow substantially gainful employment due to his service-connected PTSD beginning in 1996 when asked to be demoted from his supervisory position. The examiner further opined that the Veteran was given unreasonable accommodations by his employer resulting in a protected work environment. Such accommodations would not be tolerated in a competitive work environment, according to the examiner. The ability to work before and after hours, taking extended leaves of absences, as well as leaving when he felt angry, which could be up to three times a week, would not be tolerated in a competitive work environment and would lead to termination. The examiner stated she disagreed with any statement the Veteran could work given his limitations. Based on a review of the record, and giving benefit of the doubt to the Veteran, the Board finds that the Veteran was unable to secure and maintain substantially gainful employment for the period from June 17, 1999, through January 4, 2007. Initially, the Board notes that the opinions of the vocational counselors have not set forth any standards for defining a "protected work environment." This is exactly the issue the Court had with VA in Cantrell v. Shulkin, 28 Vet. App. 382 (2017). Nonetheless, the Board finds that the opinions of the vocational counselors that there were extreme measures taken with regard to the Veteran's employment during the relevant period are persuasive in this case, even if somewhat biased and exaggerated. The Board does not take issue at this time with a lack of showing that the accommodation measures taken at the Veteran's workplace were the only measures that could have been taken to accommodate the Veteran and that more reasonable measures might have sufficed. See Americans with Disabilities Act (as amended, 42 U.S.C. § 12101 et seq.) (interactive process duties of employers). The Board notes that a finding that the Veteran's employment was in a protected environment does not end the analysis. It simply serves to show that the Veteran cannot be said to be gainfully employed solely because his employment compensation exceeds the poverty threshold. The Board must determine whether the Veteran was actually unemployable during that time. On that point, the Board finds especially persuasive the July 2000 VA examination report. That report stated that the Veteran had significant difficulty getting along with his coworkers and was only able to work when left entirely by himself. The report also indicated he was easily irritated by interactions with other people, and wanted to get into fights with co-workers and had thoughts of harming or killing them. On the whole of the evidence, the Board is hard-pressed to identify of a job that would not avoid the multiple limitations of the Veteran's PTSD, especially when exacerbated by the physical symptoms associated with his gout. The job would have to allow the Veteran to work entirely alone, to take off three to four days every month (due to both gout and PTSD), and to repeatedly take a long break at a moment's notice when angry. The Board does not find this realistic. The Veteran had reported that his symptoms were exacerbated when being approached from behind. Thus, a sedentary manufacturing job would likely not be adequate as its presence in a manufacturing floor would necessarily mean others are present. Instead of further searching for a needle-in-a-haystack job, the Board is mindful of its duty to give the benefit of the doubt to the Veteran. Thus, with supporting opinions from the private vocational practitioners, the Board finds that, when giving the benefit of the doubt to the Veteran, a TDIU is warranted for the period from June 17, 1999 through January 4, 2007. ORDER From June 17, 1999 through January 4, 2007, TDIU is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs