Citation Nr: 18100352 Decision Date: 04/09/18 Archive Date: 04/09/18 DOCKET NO. 14-25 212 DATE: April 9, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 1 ORDER Entitlement to total disability based upon individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran’s service-connected disabilities, consistent with his education and occupational experience, preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1968 to March 1970, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations), the Bronze Star Medal and the Purple Heart. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing before the Board. In September 2017, the Veteran (or his service representative) withdrew that request in writing. Entitlement to total disability based upon individual unemployability (TDIU) The Veteran is currently service connected for PTSD, currently evaluated at 50 percent; diabetes mellitus, type II (diabetes), currently evaluated at 20 percent; tinnitus, currently evaluated at 10 percent; peripheral neuropathy for the right lower extremity, currently evaluated at 40 percent; peripheral neuropathy for the left lower extremity, currently evaluated at 40 percent; peripheral neuropathy for the right upper extremity, currently evaluated at 20 percent; peripheral neuropathy for the left upper extremity, currently evaluated at 20 percent. The Veteran also has a noncompensable rating for erectile dysfunction. The total combined rating is 100 percent as of March 2016. Before March 2016, the Veteran’s total combined rating was 90 percent. The Board notes that the Veteran’s claim for TDIU is not limited to the applicable appeal period before the Veteran received a 100 percent rating for his service connected disabilities. See Bradley v. Peake, 22 Vet. App. 280, 292 (2008) (Congress intended a single disability be rated as total for § 1114 (s), but TDIU may be used as a basis for establishing second requirement under § 1114 (s)); Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010) (TDIU rating based upon multiple disabilities does not meet the requirement of a single disability requirement of § 1114 (s).) VA also has a “well-established” duty to maximize a claimant’s benefits. See Buie, 24 Vet. App. at 250. For this reason, a TDIU may become relevant for the purpose of special monthly compensation benefits. A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As discussed above, the Veteran is eligible for consideration of TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). Entitlement to TDIU requires the presence of impairment so severe that the average person could not follow a substantially gainful occupation. 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). For the Veteran to prevail on the claim for TDIU, nonservice-connected disabilities may not be considered. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (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, 363 (1993). The Board finds that the evidence supports granting the Veteran’s TDIU claim The Veteran suffers from PTSD. His symptoms affect functioning and result in various symptoms, but in particular, anger and irritability. It is quite apparent that the Veteran has trouble dealing with others as he has reported fistfights. Although he has specialized knowledge and skills in telecommunication technology, he states he had a position where he mainly worked alone. He described irritability and interpersonal hostility when dealing with others. His additional symptoms affect functioning and result in anxiety, depression, nightmares/insomnia causing fatigue, intrusive thoughts, hypervigilance, memory and concentration problems, and avoidance behavior The Veteran is also socially isolated and has no interest in things or activities. Thus, his mental health disability limits him because the Veteran’s fatigue, irritability, and quick temper have severely affected his occupational functioning. The Veteran would also require a position where he had limited exposure with the public and limited interactions with co-workers and supervisors. The Veteran’s diabetes mellitus requires a restricted diet and, for part of the appeal period, daily injections of medication. More recently, he must use insulin. A physician has not ordered restriction of his physical activities to manage the diabetes and otherwise does not appear to affect occupational functioning. There is no evidence to suggest his erectile dysfunction, or tinnitus disabilities affect occupational functioning. In the Veteran’s case, the evidence reflects that although he has some college education/credits, his employment history and training has equipped him only as telecommunications technician, which requires some physical activity. That employment position or other labor intensive positions are now precluded by a combination of his PTSD and his physical disabilities. In particular, the Board finds the peripheral neuropathy of the lower extremities disabilities affect him not only in physical labor, but sedentary positions as well. He has trouble sitting down for any lengthy period of time. As of the October 2012 VA examination, the Veteran could walk only very short distances with a cane. This also meant he could only carry light objects in one hand. He could not walk an incline, use a ladder, and rarely use stairs. By May 2014, he needed to use a wheeled walker and had no sensation in the feet and toes. By May 2016, the Veteran had developed peripheral neuropathy in the upper extremities as well. The Board finds that the combined physical and mental limitations placed upon any employment situation make it difficult, if not impossible, for the Veteran to secure and maintain a substantially gainful position. The central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad, supra. Here, the evidence is that the disabilities are of sufficient severity to render the Veteran practically unemployable. The Board therefore finds he is unable to secure and maintain substantially gainful employment solely as a result of his service-connected disabilities. Entitlement to TDIU is warranted REMANDED ISSUE The Veteran’s claim for a rating in excess of 50 percent for acquired psychiatric disabilities, to include posttraumatic stress disorder (PTSD) is remanded for additional development. The Board is expanding the scope of the claim to encompass any mental health diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Although the file contains records of the Veteran’s treatment at the VA Medical Centers (VAMC), it does not appear these records are complete. There are records from December 2008 to July 2012 and then records from April 2014 to April 2016 with both set of records indicating the Veteran was participating in ongoing group therapy for his PTSD. In addition, besides the record gap between 2012 and 2014, a January 2016 mental health treatment note indicates the Veteran was seen in February 2015. The treatment note from February 2015 is not part of the file. The Board has determined that the missing records should be associated with the file. Ongoing VA medical records should also be obtained. The medical evidence establishes that the Veteran has depressive symptoms but may not be attributable only to PTSD. It appears the Veteran’s peripheral neuropathy, particularly pain, may be causing or aggravating the depression. Therefore, a VA examination is needed to determine if the Veteran has a diagnosis of a depression disorder caused or aggravated by the other service connected disabilities. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his PTSD claim. All properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Obtain all VA medical records of treatment of the Veteran at the VAMC and associated outpatient clinics from July 2012 to the present, to specifically include the February 2015 mental health treatment note. 3. After records development is completed, schedule the Veteran for a VA mental health examination to determine the current symptoms, level of severity, and functional impairment associated with his PTSD. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. If the examiner determines that the Veteran has a separate diagnosis of depressive disorder, or something else, then the examiner should determine whether it is at least as likely as not (50 percent probability or more) the separately diagnosed disorder had its onset during service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. If the disorder is not related to service, is it at least as likely as not (50 percent probability or more) the disorder is aggravated by his service-connected disabilities. The examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 4. After the development requested is completed, readjudicate the claim for an increased rating for the Veteran’s mental health disability. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. Evan M. Deichert Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell Veldenz, Counsel