Citation Nr: 20004036 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 19-07 437 DATE: January 16, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The evidence establishes that the Veteran was unable to secure follow a substantially gainful occupation due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU were met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340 , 3.341, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1948 to May 1952. The Veteran died in February 2015. The Appellant is the surviving spouse. In December 2018, the Regional Office (RO) accepted her as a substitute for the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) RO. 1. Entitlement to a TDIU The Veteran filed a TDIU claim, which was received on September 12, 2012. The Appellant seeks accrued benefits for the Veteran’s claim. The Veteran’s VA Form 21-8940, Application for Increased Compensation Based on Unemployability, reported the Veteran had not worked since June 1995, and stated that PTSD and cold injuries hindered in from obtaining gainful employment. According to the July 2013 VA examination report, the Veteran worked as a plant mechanic with Union Carbide and ran a fruit stand. He retired in approximately 2001 as he was having difficulties with balance, difficulties with anger, and concentration difficulties. 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 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The criteria for consideration of a schedular TDIU were met for the appeal periods. The Board finds that, when giving the benefit of the doubt, the Veteran was unable to secure or follow a substantially gainful occupation. On this record, a June 2011 VA examination for PTSD showed symptoms of depression, irritability, lethargy, fatigue, sleep onset and maintenance, memory and concentration difficulties, word finding, losing items, and confusion (dementia with gradual decline). The Veteran was not able to do serial 7’s and he was not able to spell forward and backward. His thought process was denoted as “blocking.” The examiner noted that dementia was separate and a gradual progressive condition he has been experiencing over time. The examiner further noted that dysthymia appeared secondary to PTSD, but may have been a component of dementia, too. The examiner found that depression and PTSD were most likely overlapping in the areas of sleep disturbance and irritability. His condition was complicated by progressive dementia. There was no evidence the symptoms had affected his occupational functioning, although it appeared this Veteran worked in settings where he was alone or where he functioned autonomously. He had episodes where he isolated, struggled with mood and drive and avoided hobbies and activities. The examiner found the Veteran’s dementia appeared to create more functional difficulties. The July 2013 VA examination for PTSD revealed symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, difficulty in understanding complex commands, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner opined that it was not possible to differentiate symptoms between PTSD and dementia and not possible to differentiate what portion of occupational and social impairment is attributable to PTSD versus dementia due to overlap between PTSD and dementia symptoms. The examiner also described performance in employment as follows: persistent PTSD related symptoms such as intrusive experiences (a tendency to be preoccupied and ruminate about the trauma experiences), avoidance (a tendency to isolate and withdraw), and autonomic hyperarousal (symptoms of increased irritability, tension, restlessness, and sleep disturbance) induced premature fatigue, diminished work related endurance, problems with concentration and memory, and impairments in impulse control among other things. The resultant conditions increase the risk of reduced occupational productivity, interpersonal conflicts, work related accidents, and inattentiveness. Because the examiner was unable to differentiate the symptoms of PTSD and dementia, the Board will consider all symptoms to be part of his PTSD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). As far as other service-connected disabilities, the February 2013 VA spine examination revealed range of motion reduced to 70 degrees flexion and 20 degrees extension. The Veteran reported pain to the lumbar spine with intermittent radiation to the hips and right lower extremity. The examiner found no objective evidence of pain. The examiner found the Veteran’s lumbar spine disability did not impact his ability to work. A May 2012 VA Cold Injury Residuals examination revealed the presence of arthralgia other than pain in both hands and feet, and nail abnormalities in the right foot. X-rays show osteoarthritis of both hands and feet. The examiner found the Veteran’s cold injuries would not impact his ability to work. A July 2013 VA Cold Injury Residuals examination revealed general aching pain in hands and feet with dependent rubor and flaking dry skin of hands and feet to mid forearms and mid-calves with brownish discoloration and decreased sensation to the bilateral hands and feet in a stocking and glove pattern distal to mid-forearms and mid-calves. The examiner reported the Veteran was sensitive to both cold and heat environments. The examiner found the cold injury residuals impacted the Veteran’s ability to work because the pain and numbness in his feet prevented him from walking more than 100 feet. Additionally, the examiner found that the Veteran’s cold injury residuals including the bilateral upper and lower extremity peripheral neuropathy with skin changes did not preclude limited duty or sedentary employment not requiring standing, walking, climbing stairs or ladders, or operating any machinery or vehicles. The Veteran’s private treating physician, Dr. M. M., opined that Veteran was completely and permanently disabled due exclusively to his service-connected disabilities (cold weather injury, PTSD, and spine). The physician did not provide a rationale for this opinion. The Board’s grant of the TDIU is based on the combined impairment of his PTSD, and upper and lower extremity cold injuries. The Board notes that it is key that the July 2013 PTSD examiner opined that symptoms and occupational functioning between PTSD and dementia could not be separated. Therefore all symptoms noted by the PTSD examiner are considered part of his PTSD. Mittleider, 11 Vet. App. 181. PTSD caused chronic sleep impairment, mild memory loss, impairment of short and long-term memory, difficulty in understanding complex commands, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The cold injury residuals precluded standing, walking, climbing stairs or ladders, and operating machinery or vehicles. When considering the physical and mental limitations, especially impaired short and long term memory, difficulty in understanding complex commands and intermittent inability to perform activities of daily living, the Board finds when giving the benefit of the doubt to the Veteran, the Veteran would not have been capable of securing and following a substantially gainful occupation. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.