Citation Nr: 20007930 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-15 411A DATE: January 30, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected posttraumatic stress disorder with depressive disorder (PTSD), rated 70 percent, is reasonably shown to be of a nature and severity that render him unable to maintain regular substantially gainful unemployment. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from April 1969 to October 1970. This matter is before the Board on appeal from a July 2013 rating decision. In October 2016, a Travel Board hearing was held before the undersigned; a transcript is in the record. In February 2018, the matter was remanded for additional development. Entitlement to a TDIU rating is granted. In a July 2012 statement, the Veteran’s former manager at The Logistics Company (where the Veteran worked from May 2006 to May 2010) stated that the Veteran requested to resign as the Heavy Truck Lead in 2006 due to the fact that “he could not deal with the multiple personalities of 30 drivers and their issues”, and he returned to his original position as a Truck Driver. The manager stated that when the Veteran took a Heavy Equipment Operator position in October 2007, she placed him on a staggered shift to avoid having to interact with the majority of the workforce. The manager stated that the Veteran had problems with another Heavy Equipment Operator, so she readjusted his hours and he was then able to maintain his composure. The manager stated that the Veteran has difficulty working with others, sometimes exhibiting hostile behavior when slightly provoked by certain individuals. In a July 2012 treatment summary statement, the Veteran’s VA clinical social worker stated that the Veteran had been attending the behavioral health clinic since October 2005 and had a diagnosis of severe PTSD. The clinician stated that the Veteran has always had a problem getting along with others, especially civilians with whom he worked; he stated that the Veteran had gotten into numerous altercations but was protected by his supervisors who understood the nature of his problems. The clinician opined that the Veteran’s condition worsened, leading him to make the decision to stop working rather than do bodily harm to anyone. The clinician opined that the Veteran has been permanently and totally disabled since April 1, 2012, noting that his work provided diversion but may have eventually “cost him his freedom”. On July 2012 private psychological evaluation, the provider opined that the Veteran should be rated unemployable, total and permanent, for PTSD due to his problems at work relating to workers. The provider noted that the Veteran’s last day at work was in April 2012 and opined that the Veteran works more effectively alone and does not want leadership responsibility due to his latent anger and anxiety problems. The provider opined that the Veteran’s PTSD causes him to distrust people he works with and authority that makes decisions about his work life. The provider opined that it is difficult to get the Veteran to act on problems and his best lifestyle is low stress, low demand, simple and mostly routine, which is not always possible with a new work environment. The provider opined that the Veteran is a loner and cannot maintain relationships on the job and he wants to work alone. The provider opined that the Veteran can no longer sustain gainful employment where he can make a living working with the interaction of other people, and the chronic PTSD has mitigated his training to work effectively. In his August 2012 application for TDIU, the Veteran stated that his disability affected his full-time employment as of June 2004, he became too disabled to work in April 2012, and he last worked full-time in April 2012, as a heavy equipment operator. He stated that he lost 6 weeks of time due to illness during his employment with Hallmark from May 2010 to April 2012. He stated that he left his last job because of his disability and has not tried to obtain employment since he became too disabled to work. He has a high school education. On January 2013 VA examination, the Veteran reported that he was working as a truck driver for a contractor at Fort Dix; he had been promoted to lead truck driver, which he found to be very stressful. He reported that he did not like being in the lead or supervisory position because it made him anxious and he had “safety” concerns due to working with individuals who were inexperienced and “could care less”; he requested a change after 30 days and was then moved into the heavy equipment operator position. He reported that he enjoyed that job with the exception of interacting with one colleague, with whom he had difficulty and a short temper. He reported that he developed pneumonia in December 2012 and was out of work for approximately 6 weeks; after he went back to work for 3 days, he developed pneumonia again and was out of work for another 6 weeks. He reported that he noted feeling better and less stress when he was not around work during that time period. The examiner opined that the Veteran’s psychiatric disability results in occupational and social impairment with reduced reliability and productivity. The examiner opined that it is less likely than not that the Veteran’s PTSD renders him unable to secure and maintain all employment, noting reports of some past difficulties in employment situations and opining that this does not mean that he is unemployable to work all jobs with all employers. The examiner noted the Veteran’s report that he worked 31 years in construction, and 7 years for a private contractor and physically located at Fort Dix, and that he lives around the corner from McGuire Air Force Base; the examiner noted the Veteran’s report that his triggers are military, helicopters, artillery fire, and soldiers at Fort Dix, and he worked and lived in an environment that was continually stimulating for him. The examiner noted the Veteran’s report of having difficulty with others and with supervisors during his time in construction. The examiner noted that the Veteran had surrounded himself by things that constantly trigger him, and noted a decrease in his PTSD symptoms when he was physically removed from his home and his job while on vacation. Given this, the examiner opined that it is less likely than not that the Veteran’s PTSD renders him unable to secure and maintain employment. In a January 2013 response to a request for employment information, the Veteran’s former employer noted that he last worked for Hallmark in March 2012 as a heavy equipment operator and that his employment was terminated because the company lost its government contract. He lost one month of time during the 12 months preceding his last date of employment, and no concessions were made by reason of his age or disability. In a February 2013 response to a request for employment information, the Veteran’s former employer noted that he last worked for The Logistics Company in April 2010 as a heavy equipment operator and that his employment was terminated due to being laid off. He lost no time during the 12 months preceding his last date of employment, and no concessions were made by reason of his age or disability. At the Board hearing, the Veteran testified that he has not held any jobs since April 2012. He testified that he owns a farm in Virginia which he has visited and where he would prefer to live due to its isolation, but he has not lived there because his wife does not want to move there. On April 2019 VA examination, the Veteran’s former clinician and mentor came to the evaluation at the Veteran’s request; the clinician opined that the Veteran has a low tolerance for people, often reacts with anger or frustration, and “he was 100% disabled when he came out of the Marines and he is 100% disabled today.” The Veteran reported that he was a member of a heavy construction union for 31 years, during which time he was frequently laid off due to verbal and physical altercations with other union members. He reported that he took an early retirement from the union in 2004 because of his frequent fights with coworkers. He reported that he worked as an independent contractor until 2012 and he was successful largely because his boss understood his symptoms and assigned him to work alone more often than not. The diagnoses included PTSD and persistent depressive disorder. The examiner opined that the Veteran’s psychiatric diagnoses result in total occupational and social impairment; the examiner opined that it cannot be determined to what extent each disorder contributes to the Veteran’s impairment, as they both do and share significant overlapping symptoms. The examiner opined that the Veteran’s greatest impairment is his irritability and low tolerance for social interaction, noting that he has a history of being laid off when in the union due to his inability to control his anger with others and the resulting conflicts. The examiner opined that this behavior will more likely than not result in unsuccessful occupational placement in any setting in which the Veteran has to work with others, as it has done in the past. The examiner opined that, given the Veteran’s occupational history and his current symptom presentation, he will more likely than not be unsuccessful in any work environment that requires him to interact and/or work with others. In a June 2019 statement, the Veteran stated that his last day of work was April 1, 2012. He stated that he is not self-employed; rather, he is a hobby farmer, from which he has never made a profit. He stated that some weeks he does not work at all and some weeks he works long hours doing hay cutting. A TDIU rating may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s service-connected PTSD with persistent depression is rated 70 percent. The schedular rating requirement for TDIU in 38 C.F.R. § 4.16(a) is met throughout. Considering the effects of the service-connected disability on employability, the Board finds significant, in support of the Veteran’s claim, the July 2012 opinion by his treating VA clinical social worker and the August 2019 VA examiner’s opinion. The VA social worker’s opinion that the Veteran has been permanently and totally disabled since April 1, 2012, is based on nearly 7 years of treatment in the behavioral health clinic, and the August 2019 examiner’s opinion that the Veteran’s PTSD results in total social and occupational impairment is based on a review of the complete record and interview with the Veteran. Clearly, their observations reflect that the Veteran is precluded by the psychiatric disability from participating in any type of employment that would require interaction with others. The Board has no reason to question those opinions, and finds they support that he would be unable to maintain employment consistent with his education and work experience. While a January 2013 VA medical examiner opined that the Veteran’s psychiatric disability does not render him unable to secure and maintain employment, the rationale for the opinion appears to be based largely on the impression that the Veteran had intentionally chosen to live near, and work on, military bases, choosing to focus on the Veteran’s report that his symptoms were reduced while he was away from home on vacation. The provider did not offer any explanation why the Veteran’s severe PTSD would not impact on employability even after he had stopped working at Fort Dix, as he did in April 2012. The provider also did not address the two July 2012 opinions submitted in support of the Veteran’s claim, particularly the opinion offered by the Veteran’s own treating clinical social worker. Considering the effect of the functional impairments flowing from the Veteran’s service-connected disability, the Board finds that due to such disability he is reasonably shown to be precluded from maintaining any regular substantially gainful employment. A TDIU rating is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.