Citation Nr: 20021272 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 12-30 598 DATE: March 25, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from January 23, 2012 is granted. FINDING OF FACT The Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment since January 23, 2012. CONCLUSION OF LAW The criteria for entitlement to a TDIU beginning January 23, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1966 to August 1969, to include service in the Republic of Vietnam. He has additional service in the Louisiana Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Procedurally, the Board initially denied this appeal in a September 2017 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court granted a joint motion for partial remand (JMR), vacating the Board’s decision as it related to the issue on appeal, and remanded the matter for compliance with the instructions in the JMR. Subsequently, the Board again denied the appeal in a December 2018 decision. The Veteran filed an appeal of that decision to the Court. In November 2019, the Court again granted a JMR, vacating the Board’s decision as it related to the issue on appeal, and remanded the matter for compliance with the instructions in the JMR. Entitlement to a TDIU prior to April 4, 2017 The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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 Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected posttraumatic stress disorder (PTSD), ischemic heart disease (IHD), diabetes mellitus type II, bilateral tinnitus, and bilateral hearing loss. 38 C.F.R. § 4.16(a). As the Veteran has received a 100 percent rating from April 4, 2017, the Board will only consider whether or not the Veteran has met the criteria for a TDIU prior to April 4, 2017. Military personnel records reflect the Veteran’s military occupation specialty was that of truck master. On his January 2012 and December 2016 applications for unemployability he reported that his service-connected PTSD, IHD, and diabetes mellitus prevent him from following a substantially gainful occupation. The Veteran reported completing a high school education. He reported he last worked full-time in January 1992 as a chief operator at a paper mill. He did not report any additional education or training gained post service. The Veteran presented for a VA examination in May 2012 to assess the current severity of his service-connected diabetes mellitus and ischemic heart disease, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. When asked to describe the functional impact the Veteran’s disabilities has on his ability to work the examiner reported that the Veteran’s diabetes mellitus and ischemic heart disease render the Veteran unemployable for manual labor but not for sedentary labor such as clerical, administrative work with limitations on lifting, prolonged standing, strenuous continuous reaching, pulling, and prolonged ambulation. In the December 2014 VA examination, the examiner noted that the Veteran’s diabetes mellitus did not impact his ability to work. The Veteran presented for a VA examination in June 2016 for his diabetes mellitus where the VA examiner noted functional impact on the Veteran’s ability to work as manifesting in the Veteran feeling weak, dizzy, fatigue, drained, and tired. The Veteran presented for a VA examination in January 2017 for his ischemic heart disease where the VA examiner noted functional impact in an occupational environment as manifesting in the Veteran getting shortness of breath easily that the Veteran would have to sit and rest. The Veteran presented for a VA PTSD examination in December 2012 to assess the current severity of his service-connected PTSD, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. He endorsed psychiatric symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. During clinical interview the Veteran reported high school degree as the highest education completed, and working for 20 years until 1992 as a chief operator at a paper mill. He stopped working due to his back in 1980 and eventually retired due to his back. However, the Veteran also noted that he eventually could not work due to his back and depression. The Veteran reported that his mental health affected his work as he felt depressed and more withdrawn. The examiner indicated that though the Veteran’s mental health condition had some negative impact on occupational functioning, these do not appear to be the primary reason he left the workforce as the symptoms described today would not prevent him from working in a manufacturing or paper mill type setting. The examiner reported that the Veteran’s depressive symptoms include crying spells, anhedonia, loss of appetite, reduced concentration, psychomotor slowing, and fatigue. When asked to describe the functional impact the Veteran’s disability has on his ability to work the examiner reported that the Veteran left the workforce due to physical issues, and certainly works better alone when he is on a task-oriented job with some autonomy. The examiner further noted that although the Veteran is not found unemployable due to mental health issues, it is at least as likely as not that his PTSD has worsened and that his symptoms affect most areas of functioning. The Veteran presented for a VA PTSD examination in January 2017 to assess the current severity of his service-connected PTSD, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. During clinical interview the Veteran reported living in his house with his wife of 38 years, staying in touch with his children, and having a propensity to isolate. Further, the Veteran attended church, but sat at a private room at the back of the church and avoided crowds and social gathering. He endorsed psychiatric symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner further noted that the Veteran reported symptoms of disturbance in both sleep and appetite, easily agitated with some anger issues, anhedonia and anergia, as well as a propensity to isolate. The Veteran submitted a private medical opinion by Doctor M.Y. in April 2012. In the opinion, Doctor M.Y. noted that the Veteran has deficiencies in the areas of work, and family relations, deficiencies in judgment and thinking, thinking/severe mood swings, suicidal ideation, obsessional rituals which interfere with routine activities, constant depression, impaired impulse control, unable to tolerate stressful circumstances, and inability to establish and maintain effective relationships. Doctor M.Y. further noted that the Veteran has had for years deficiencies in most areas, and that his PTSD lowers the quality of his life. Doctor M.Y. concluded by indicating that the Veteran leads a life of severe isolation and alienation, living on the fringes of his community and unable to participate in normal everyday world. The Board acknowledges that the Veteran has been found disabled by the Social Security Administration (SSA) since 1993. The SSA considers different criteria to determine disability than the VA, which include residual functional capacity, all of the claimant’s disabilities, age, education, and work experience. The VA does not consider age nor nonservice-connected disabilities. Although SSA records note that the Veteran is disabled due to his back, additional SSA records also note that the Veteran was also secondarily diagnosed with depression and major affective disorder. See June 1993 SSA Disability Determination and Transmittal, August 1995 SSA Disability Determination and Transmittal. Treatment records also note that the Veteran is disabled under SSA due to his back and depression. See May 2006 Agent Orange Registry VA Examination, August 2007 VA Treatment Record, October 2012 VA Treatment Record. Taken as a whole, the Veteran’s symptoms do suggest he was unable to obtain and maintain employment. Given the Veteran’s education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does consider this level of impairment as one that would preclude employment. In consideration of the November 2019 JMR, the Board assessed the terminating reason the Veteran left the workforce and addressed the various psychological and physical symptoms that may affect the Veteran’s ability to obtain and maintain employment. For instance, as noted above, the Veteran reported leaving the workforce due to both his back and his depression, which is consistent with SSA records revealing that the Veteran was secondarily diagnosed with depression and major affective disorder warranting SSA disability benefits. The Board acknowledge the opinion by the December 2012 VA examiner who noted that the Veteran’s back is the primary reason for his unemployability, and that the Veteran could still work at the paper mill. However, as noted above, there is sufficient evidence to show that the Veteran’s depression was a factor in his unemployability. Furthermore, the Veteran has been deemed unable to perform manual labors by a VA examiner due to his service-connected diabetes mellitus and ischemic heart disease. See May 2012 VA Examination Report. Such findings would preclude the Veteran from maintaining employment at the paper mill as a chief operator, as it is reasonable to conclude that his duties would not be limited to administrative work. The Veteran’s mental health disability also affects functioning and result in various symptoms affecting employment. He has trouble being around others, and his near-continuous panic or depression affects his ability to function independently, appropriately and effectively. See January 2017 VA Examination Report. Additionally, the Veteran tends to and leads a life of severe isolation and alienation, and attempts to avoid others, such as when attending church in a private back room. The Veteran reported being married and having children, but still indicated his propensity to isolate. The Veteran’s PTSD also includes symptoms of memory and concentration problems. Accordingly, the Veteran’s mental health disability limits him to a position where he has limited exposure with the public or co-workers and supervisors. Further, even if he is placed in a solitary position, performance is affected by his mental symptoms, such as the inability to concentrate, inability to tolerate stressful circumstances, and depression affecting his ability to function independently, appropriately, and effectively. Given the mental and physical limitations caused by service-connected disabilities, the Boards finds that the combined physical and mental limitations placed upon any employment situation made it difficult, if not impossible, for the Veteran to secure and maintain a substantially gainful employment. As such, entitlement to a TDIU is warranted effective January 23, 2012, the date the Veteran filed his claim for a TDIU. Notably, this claim was not raised as part of a claim for an increased rating, but instead the issue was independently raised. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The evidence of record prior to the Veteran’s January 2012 claim for a TDIU does not show that the Veteran became unable to obtain or maintain substantially gainful employment within the year prior to his claim. See 38 C.F.R. § 3.400(o)(2). Notably, the Veteran was found to be disabled by SSA and unemployed for many years prior to the date of his application for a TDIU. Therefore, the probative evidence supports an effective date of January 23, 2012 for the award of a TDIU. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.