Citation Nr: 20006284 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 17-13 107 DATE: January 28, 2020 ORDER Entitlement to total disability based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, the most probative evidence indicates he was prevented from obtaining and maintaining substantially gainful employment in accordance with his occupational background as a result of service-connected disabilities. CONCLUSION OF LAW The requirements to establish entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1969 to July 1971. He was afforded a hearing before the undersigned in December 2019. 1. Entitlement to total disability based on individual unemployability (TDIU) due to service-connected disabilities. The Veteran asserts that his service-connected disabilities prevent him from obtaining and/or maintaining substantially gainful employment. At his December 2019 hearing he testified that his service-connected anxiety disorder manifested as panic attacks so numerous that it made working as a welder and pipefitter impossible. He further testified that the medication used to manage his anxiety symptoms also made his particular type of work difficult to accomplish. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. § 4.16 (a). A total disability rating may be assigned where the schedular rating is less than total where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran is service connected for general anxiety disorder rated as 70 percent disabling. The Veteran’s single disability results in a rating of more than 60 percent; thus, the minimum schedular criteria for TDIU. 38 C.F.R. § 4.16 (a). In his January 2015 Application for Increased Compensation based on Unemployability, the Veteran reported that he worked as a welder from 1977 to December 2015. He completed high school and completed a welding training program in 1977. Other evidence of record throughout the appeal period reflects the Veteran consistently maintaining that he worked as a welder and pipefitter for over thirty years and that he would have continued with this work but for his severe anxiety and panic attacks which made that type of work unsafe. Several medical opinions of record address the Veteran’s service-connected anxiety and its effect on his ability to work. A July 2016 letter from his treating VA therapist detailed the Veteran’s anxiety disorder manifested as daily anxiety and panic attacks which were so severe and prolonged that they were debilitating. The therapist also noted that the Veteran’s anxiety disorder symptoms prevents him from being around others in the community and in a work environment, becomes severely debilitating to the point that he is no longer able to drive himself without posing a threat to himself and others, and has interfered with his ability to function to the point where he could no longer maintain any type of employment. Medical treatment notes, including notes from the Veteran’s therapy sessions, support the July 2016 therapist’s opinions concerning the severity of the Veteran’s anxiety disorder. A September 2016 VA examination report for the Veteran’s anxiety disorder includes the examiner’s opinion that the Veteran’s anxiety symptoms are severe enough that they would significantly impact his productivity and reliability in a work setting. The examiner further detailed how the anxiety and panic attacks described by the Veteran were severe enough to physically effect the Veteran’s demeanor, such as sweating, breathing heavily, and shaking. (Continued on the next page)   In light of the Veteran’s occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that the Veteran’s service-connected anxiety disorder symptoms were sufficient to render him unable to obtain and maintain substantially gainful employment, in accordance with his occupational background. The Veteran had consistently reported during the appeal period that he worked as a pipe fitter and welder which is an occupation that the Board recognizes could be materially affected by severe panic attacks. Both the July 2016 and September 2016 opinions are consistent with the medical evidence of record, both do not refute the Veteran’s assertions of how his disability interfered with his employment, both support the Veteran’s credible testimony, and as such the Board finds this evidence to be probative. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.