Citation Nr: 20007869 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-31 361A DATE: January 30, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether service-connected posttraumatic stress disorder (PTSD) prevented the Veteran from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU had been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1943 to March 1946. He died in 2018. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the decision, the RO denied the Veteran’s claim of entitlement to a TDIU. In November 2019, subsequent to the Veteran’s death, the Board dismissed the claim. Later in November 2019, the RO properly substituted the appellant into the claim on appeal. See 38 C.F.R. §§ 3.1000, 3.1010. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the Veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to substantiate a TDIU claim. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran filed a claim of entitlement to a TDIU on April 12, 2013. At that time and until his death in 2018, he was service connected for PTSD as 70 percent disabling (effective since May 2010), tinnitus as 10 percent disabling (effective since July 2006), and bilateral hearing loss disability as 10 percent disabling (effective since December 2006). As such, the schedular requirements for TDIU were met since the Veteran filed his claim. Moreover, the record is clear that the Veteran was not substantially and gainfully employed during this period. The Board finds that the evidence is in a state of relative equipoise regarding whether this was a result of the Veteran’s service-connected disabilities. Certain evidence indicates that nonservice-connected problems prevented the Veteran from being able to work prior to his death. Private and VA treatment records document that the Veteran was treated for heart disease in the decade prior to his death from heart disease and hypertension. These records note the Veteran’s PTSD, but do not present a clear picture that PTSD disabled him to such an extent that it prevented him from securing and following substantially gainful employment. Further, in a May 2013 report – in the only VA compensation examination report addressing the claim – the VA examiner stated that “PTSD symptoms by themselves” did not prevent the Veteran from gainful employment. The May 2013 VA examiner also indicated, however, that symptoms associated with major depressive disorder, panic disorder, and PTSD overlapped and could not be differentiated with regard to their impact on employability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). So the May 2013 VA report is unclear regarding the extent to which psychiatric disability rendered the Veteran unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. By contrast, the Veteran’s treating VA psychiatrist clearly stated that PTSD precluded substantially gainful employment. In an August 2018 letter, the physician summarized the extensive psychiatric care he provided the Veteran throughout the appeal period. The examiner summarized the wartime experiences that caused the PTSD symptoms which “significantly impaired his social and occupational functioning.” The examiner stated that the Veteran stopped working in 1987 due to PTSD impairment in the work setting. The physician described the symptoms as “severe” and indicated that they caused total impairment. Each medical opinion is probative because each is provided by a medical professional who demonstrated a familiarity with the Veteran’s case and with the medical issue presented. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt, grant the appellant the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board finds that the Veteran had been unemployable as the result of his service-connected disability throughout the period on appeal. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (the ultimate TDIU determination rests with VA and not a medical examiner). To the extent that the appellant is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless a Notice of Disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order). Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.