Citation Nr: 20006672 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 16-57 779 DATE: January 28, 2020 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT A February 2017 private examination indicates that the Veteran’s service-connected PTSD (with aggravation of pre-existing mental retardation) has impaired the Veteran to the extent that he is unable to obtain or maintain gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to October 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February March 2011 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO) in Portland, Oregon. A Board hearing was held before the undersigned on October 2019. A transcript of the hearing is associated with the record. The Board notes that in the March 2011 rating decision, the RO denied TDIU based on the findings of an August 2007 VA examination. During this examination the conducting physician indicated that the Veteran’s service-connected PTSD did not cause him to be unemployable but, rather, the most significant factors causing unemployment were limited mental capacity (diagnosed as mild to moderate mental retardation ) and lack of job skills. However, the Board finds that the initial claim for service connection was not accurately characterized as a claim for service connection for PTSD alone but also for the fact that PTSD aggravated the Veteran’s pre-existing mental retardation. At the October 2019 Board hearing, the Veteran’s brother testified that the Veteran’s mental retardation existed prior to service. See Board hearing transcript. This condition clearly and unmistakably both (1) existed prior to service, and (2) was aggravated by service, as documented in December 1971 VA correspondence. Furthermore, there is no evidence in the claims file indicating that it is possible to distinguish the Veteran’s PTSD symptoms from the aggravating effect they have on his pre-existing mental retardation. Therefore, the law requires that VA consider both conditions as service connected. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, the Board will hereby recharacterize the Veteran’s service-connected PTSD as “PTSD with aggravation of pre-existing mental retardation” to more accurately reflect the Veteran’s intent when he initially filed a claim for service-connected benefits for these symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A TDIU rating for service-connected disabilities is granted. It is the established policy of VA that all veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran’s level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) (“[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.”) (emphasis added.) Eligibility The Veteran does not have a service-connected disability that is rated at least 60 percent disabling nor does he have multiple service-connected disabilities, combining to a 70 percent or greater level of impairment with at least one disability rated 40 percent and thus he does not meet the schedular criteria for TDIU eligibility. 38 C.F.R. § 4.16(a). However, the Veteran reported in his application for increased compensation based on unemployability that, due to his service-connected PTSD, right wrist fracture, shrapnel residuals and scars and arthritis of his right knee, he is unable to gain employment, which raises the issue of eligibility for a TDIU rating on an extraschedular basis. See 38 C.F.R. § 4.16(b). Factual background At a July 2015 VA examination, the conducting physician noted that the Veteran’s longest period of employment was six months but that was many years ago and he has not been gainfully employed for most of his adult life. The Veteran was afforded a March 1991 VA examination, where the conducting physician reported that the Veteran’s father indicated that the Veteran had been mentally retarded since birth and only had an 8th grade education. The physician also reported that the Veteran has never been able to work, primarily because he has a very low frustration tolerance, and when he is physically unable to complete a task, he becomes upset, agitated and extremely angry. The physician indicated that the Veteran does not read well at all and takes him a long period of time to figure out the content of anything that he does read. Finally, the physician opined that it is quite possible that the Veteran experienced traumatic experiences while in Vietnam that he is not able to verbalize. As stated earlier, the Veteran was afforded a subsequent VA examination in August 2007 where the conducting physician opined that it was the Veteran’s limited mental capacity and lack of job skills which was the reason for his unemployment. However, the examiner also stated that the Veteran has continued to suffer from the symptoms of PTSD without periods of remission and that he did not anticipate any further improvement. At the July 2015 VA examination, the conducting physician opined that the Veteran did not have a current diagnosis of PTSD that conformed to the DSM-5. As a rationale, the physician opined that the Veteran’s moderate mental retardation was present before service and during the examination. The physician added that the Veteran has a profound inability to be introspective, to be aware of an inner landscape, and to verbalize his feelings and emotions, which are needed to be able to fulfill criteria for PTSD. The physician also explained that the Veteran had severe deficits in his focus, attention and ability to comprehend and remember information. The physician stated that the Veteran had a low frustration tolerance which impaired his ability to have appropriate social interaction with others and that he had poor organizational skills which means that he requires constant oversight to complete tasks. The Veteran provided a February 2017 private medical opinion from a licensed clinical psychologist, Dr. Peter Calvo who diagnosed the Veteran with PTSD which conformed to the DSM-5. Dr. Calvo opined that due to the trauma the Veteran experienced in Vietnam, he has demonstrated occupational and social impairment with noted deficiencies in many areas such as work, family relations, judgment and mood regulation. Dr. Calvo explained that the Veteran struggles with panic and occasional depressive episodes affecting his ability to function effectively and that he experiences breakthrough episodes of impaired impulse control evidenced by unprovoked outburst of anger and irritability. Finally, Dr. Calvo stated that the Veteran struggles with occasional disorientation from time to time and has demonstrated significant challenges in adapting to stressful circumstances such as work-like situations. Analysis As noted earlier, this claim has been recharacterized as one for service connection for “PTSD with aggravation of mental retardation.” Given that the August 2007 and July 2015 VA examiners did not account for the fact that the Veteran’s in-service trauma which caused his PTSD may have also aggravated the symptoms his preexisting mental retardation, the Board cannot assign their opinions significant probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). The Boards assigns some probative value to the 1991 VA examiner’s opinion because he acknowledged the possibility that the Veteran experienced traumatic experiences while in Vietnam but is not able to verbalize it properly due to his mental retardation. Accordingly, the Board is persuaded by his opinion that the Veteran has never been able to work due his low frustration tolerance and anger issues. The Board also assigns significant probative value to the February 2017 private medical opinion because Dr. Calvo indicated that the Veteran’s traumatic exposure which led to the Veteran’s PTSD may have also contributed to his current level of psychological and cognitive impairment. Dr. Calvo supported his opinion with a thorough rationale which accounted for the Veteran’s experiences before and after service and which was based on ten individual sessions with the Veteran. Accordingly, the Board is persuaded by Dr. Calvo’s opinion that the Veteran’s symptoms prevent him from adapting to a work-like setting. Based on the above and the Veteran’s lack of employment history, education and vocational training, the Board finds that the Veteran’s service-connected disability has reduced his occupational functioning to such an extent as to make him unable to obtain and maintain substantially gainful employment. Therefore, a TDIU rating is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board sincerely apologizes for the significant delays in assisting the Veteran with this claim. The Board is grateful for the Veteran’s honorable service. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.