Citation Nr: 20008010 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-30 303 DATE: January 30, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to the Veteran’s service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD) is remanded. FINDING OF FACT It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1976 to September 1979 and from September 1980 to June 1995. His awards include the Army Commendation Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2008 and July 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife presented sworn testimony at a hearing before the undersigned in December 2019. These matters were remanded in October 2015 for additional development. Entitlement to a TDIU. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist 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. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran asserts that his service-connected disabilities cause him to be unable to secure or follow a substantially gainful occupation. Specifically, the Veteran states that his bilateral feet disability and his arthritic knees limit his ability to walk; his kidney disability causes recurring kidney stones and urinary tract problems leading to severe pain; and his PTSD makes it hard for him to work with others, and causes depression, anxiety, sleep impairment, and suspiciousness. See Correspondence, June 2018. The Board notes that the Veteran’s service-connected disabilities meet the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38 C.F.R. § 4.16. On his TDIU application, the Veteran reported that he last worked in February 2005. See VA Form 21-8940, December 2013. During the February 2018 VA examination, the Veteran reported working at his last place of employment for only two weeks before he had to stop due to physical problems. At the December 2019 hearing, the Veteran testified that his kidney stone condition can be extremely debilitating, causing him to pass out from the pain while at work. He also testified that the prescribed medication that he takes for his service-connected disabilities cause him to feel groggy, which he states can be a danger to others while working an assembly line. In a statement made by the Veteran’s spouse, she asserted that the Veteran cannot walk more than a few feet at a time, has difficulty sleeping, must sit with his back to the wall in public places, has unexplained crying events, and “spaces out” in public and at home. See Correspondence, June 2016. Although the February 2018 PTSD VA examination concluded that the Veteran’s service-related mental health disabilities do not limit his ability to function in an occupational environment, the Board notes that the United States Court of Appeals for the Federal Circuit held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Further, the Board finds it highly probative that in May 2008, the Social Security Administration (SSA) found the Veteran disabled for social security purposes beginning January 1, 2006. The SSA found that the Veteran is unable to perform any past relevant work, his acquired job skills do not transfer to other occupations within the residual functional capacity defined by the SSA, and considering the Veteran’s age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the Veteran can perform. In making its decision, the SSA considered the Veteran’s service-connected kidney condition and arthritis of the joints, and his non service-connected diabetes. After a review of the evidence of record, and resolving any reasonable doubt as mandated by law, the Board finds that the evidence supports that the Veteran’s service-connected disabilities prevent him from securing or following substantially gainful employment. In sum, the Board finds that entitlement to a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent for PTSD is remanded. At the December 2019 Board hearing, the Veteran testified that the VA examiner who provided the February 2018 VA examination report did not fairly assess his psychiatric complaints. The VA examiner noted that the Veteran has a formally diagnosed mental condition, but symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. However, the Veteran testified that he experiences frequent suicidal thoughts and his medical treatment records show a history of suicidal ideation. Further, the record shows that in September 2019 the Veteran was admitted to a PTSD residential rehabilitation treatment program for chronic PTSD for the length of 25 days. See Medical Treatment Records, October 2019. The Board finds that the Veteran should be afforded a new VA examination with a different VA examiner on remand in order to adequately address the current nature and severity of the Veteran’s service-connected PTSD. The matters are REMANDED for the following action: 1. Identify and obtain all outstanding treatment records regarding the Veteran’s claim. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent, and severity of his PTSD and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. (Continued on the next page)   3. Schedule the Veteran for a VA psychiatric examination with an examiner, other than the one who performed the February 2018 examination, to determine the current nature, extent, and severity of his psychiatric disability. The claims file and any lay statements must be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, and the results should be reported. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.