Citation Nr: 20007367 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 14-36 786 DATE: January 30, 2020 ORDER Entitlement to total disability due to individual unemployability (TDIU) is granted. REMANDED Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to secure and maintain substantial gainful employment. CONCLUSION OF LAW The criteria for service connection for entitlement to TDIU are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to April 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. These matters were previously remanded in a March 2018 decision. Following the Board’s March 2018 remand, the RO issued a supplemental statement of the case (SSOC) in November 2019 denying entitlement to TDIU. The SSOC did not address the Veteran’s claim for entitlement to a rating in excess of 70 percent for PTSD. See November 2019 SSOC. However, in a separate November 2019 rating the decision, the RO adjudicated the Veteran’s PTSD claim, awarding a rating of 70 percent effective August 21, 2012. See November 2019 Rating Decision. Although the RO indicated that this constitutes a full grant of the benefit sought on appeal, the Board notes that in his Form 9, the Veteran indicated that he was seeking a total, 100 percent disability rating for PTSD. See February 2015. As the Veteran has not been granted a total disability rating for PTSD, this issue remains on appeal. Thus, the issues before the Board are entitlement to a rating in excess of 70 percent for PTSD, and entitlement to TDIU. Entitlement to total disability due to individual unemployability (TDIU) is granted. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 because of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disabilities to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Based on the Veteran’s rating of 70 percent for PTSD, effective August 21, 2012, the Veteran meets the schedular criteria for entitlement to TDIU. The Veteran is also service connected for tinnitus with a rating of 10 percent, bilateral hearing loss, with a noncompensable rating both effective August 21, 2012 and erectile dysfunction with a noncompensable rating effective February 16, 2016. See November 2019 Rating Decision. As of May 17, 2018, the Veteran has been rated 100 percent for arteriosclerotic cardiovascular disease. Vocationally, the Veteran has a tenth grade education, and was employed as a truck driver for 30 years, until he retired in 2009. See January 2020 other. Viewing the evidence in the light most favorable to the Veteran, the Board finds that the combined effects of the Veteran’s service-connected disabilities render him unable to secure and maintain substantial gainful employment since August 21, 2012, the date of his initial claim for PTSD. In a September 2012 letter, the Veteran’s social worker noted that the Veteran’s symptoms have included intrusive memories, nightmares, hypervigilance, sleep disruption, isolative behaviors, depression, anxiety and avoidance of feelings. The Veteran was noted to demonstrate a flat affect with disturbances in motivation and mood, impaired impulse control, unprovoked irritability and anger. The Veteran also demonstrated impairment of short term memory and near continuous depression affecting his ability to function appropriately and effectively. Finally, the Veteran’s social worker opined that the Veteran’s PTSD was moderate in severity. See October 2012 Medical Treatment Record- Government Facility. Veteran Center treatment records show that the Veteran has received mental health counseling from August 2012 through March 2019, on a monthly to bi-monthly bases. See March 2019 Medical Treatment Record- Government Facility. The Veteran’s counseling records largely show ongoing difficulty with short term memory, anxiety and depression. However, treatment records frequently note the Veteran as alert and oriented. In August 2016 the Veteran was noted to have increased anger management skills with those closest to him. The Veteran’s counselor noted that the Veteran’s prognosis was good, as he implemented coping skills effective and medication management as prescribed. In November 2018 the Veteran reported ongoing symptoms of anger and worry that things will ‘come crashing down.’ See Medical Treatment Record- Government Facility at 8. However, by January, the Veteran reported lower stress and anxiety. He also reported spending the holidays with his wife and grandchildren. The Veteran was afforded a VA examination for his PTSD in December 2012. The examiner noted symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships and suicidal ideation. The examiner opined that the Veteran’s PTSD symptoms result in occupational and social impairment with reduced reliability and productivity. See December 2012 VA examination at 14, 19, 20. The Veteran underwent a private psychological evaluation in April 2018. He reported monthly visits with a counselor. Upon examination, the Veteran was noted to have significant symptoms of anxiety, chronic depression and major depressive episodes. The Veteran also demonstrated symptoms of isolation, indicating that he had been completely avoidant of other relationships. He also reported symptoms of agitation and irritability. See May 2018 Medical Treatment Record- Non-Government Facility at 2, 3. During his June 2019 VA examination, the Veteran reported that he preferred being by himself and had done his best when driving a truck. He stated that he would not be able to handle working on an assembly line or sitting at a desk. Because of his inability to tolerate work demands, the Veteran had applied for SSA disability benefits. He indicated that he had about 40 jobs by the time he turned 62 and, at that point, he retired. The Veteran is now receiving Social Security benefits and union retirement. The Veteran denied believing he could consistently get up, get ready and arrive on time for a job. He stated he will get up in the morning and has to watch television until 9:30 am before he can begin doing anything. The Veteran denied believing he could tolerate working for another person and questioned whether he would be able to consistently perform a job for a whole workday. He noted he helps a friend selling bait a couple of hours, four days a week but cannot tolerate any more and he mows grass which he can do by himself. With more extended work, the Veteran indicated he cannot stay on task as he often starts things which are not completed. His wife affirmed the Veteran's concentration and short-term memory are not good. The Veteran noted he used to read a lot but stopped reading books as he now finds he reads a page and forgets what he had read when he goes to the next page. The examiner noted that the Veteran's referral for Review Compensation Examination questions his ability to obtain or maintain substantially gainful employment. While the Veteran denies understanding this because of his current compensation status, the examiner found he presents with a psychiatric profile which impacts his ability to obtain and maintain attain full-time, competitive employment. PTSD underlies interpersonal discomfort and the Veteran will have difficulty interacting with coworkers, supervisors and/or the public. General problems with memory and attention/concentration are present, likely interacting with sleep problems which compromise energy. The Veteran's profile of symptomatology is associated with problems maintaining pace and consistency of work as well as endurance. He will have difficulty dealing with change in the work setting and his performance even in solitary, sedentary work settings will be impacted by the issues described. This clinical profile is associated with a range of limitations in functioning. The Board notes that during a December 2012 hearing loss exam, the Veteran denied that his hearing loss and tinnitus did not have a functional impact on his ability to work. See December 2012 VA examination. Notably, during a January 2020 VA assessment, the Veteran reported retiring from his job as a truck driver because of the fatigue caused by his service-connected heart condition, which made it unsafe for the Veteran to drive. See January 2020 other. As referenced above, throughout the appeal period, the Veteran’s PTSD resulted in interpersonal discomfort with the Veteran having difficulty interacting with coworkers, supervisors and/or the public; problems with memory and attention/concentration; problems maintaining pace and consistency of work as well as endurance; and difficulty dealing with change in the work setting with his performance even in solitary, sedentary work settings impacted. Although there is evidence suggesting that the Veteran is not able to work primarily due to his heart disability, the evidence is at least in equipoise, when considering his prior work history and educational level, and the is also unable to obtain and maintain gainful employment as a result of his PTSD. Accordingly, the claim is granted. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. As referenced above, the November 2019 SSOC did not address the Veteran’s claim for entitlement to a rating in excess of 70 percent for PTSD. The Veteran’s representative noted that the SSOC did not address the claim for PTSD and requested a remand. Pursuant to 38 C.F.R. § 19.31, a remand is warranted. The matter is remanded for the following: (Continued on the next page)   Issue a SSOC on the issue of entitlement to an initial rating in excess of 70 percent for PTSD. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish 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.