Citation Nr: 20028833 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 13-06 455A DATE: April 24, 2020 ORDER Subject to the governing regulations concerning the payment of monetary benefits, entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran filed a formal claim for a TDIU in June 2012, during the pendency of an appeal stemming from a claim filed in on January 14, 2011. 2. The Veteran has not participated in a substantially gainful occupation during the appeal period. 3. The Veteran's service-connected disabilities rendered him incapable of securing or following a substantially gainful occupation throughout the entirety of the appeal period. CONCLUSION OF LAW The criteria to establish TDIU are met throughout the entirety of the appeal period. 38 U.S.C. §§ 1155, 5110(a), (b)(2) (West 2002); 38 C.F.R. §§ 3.102, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1958 to September 1961. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a July 2013 Decision Review Officer (DRO) decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Agency of Original Jurisdiction (AOJ), as part and parcel of the Veteran’s appeal for an increased initial evaluation for service-connected posttraumatic stress disorder (PTSD). In a June 2015 decision, the Board, among other actions, denied the Veteran’s appeal seeking to establish TDIU. The Veteran filed a motion for reconsideration that was denied by the Board in June 2016. The Veteran subsequently appealed the Board’s June 2015 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2017 Order, the Court endorsed a Joint Motion for Partial Remand (Joint Motion) executed by an attorney representing the Veteran and VA’s office of General Counsel earlier that month, which vacated the portion of the June 2015 Board decision that denied entitlement to TDIU and remanded the issue back to the Board with guidance and instructions. In November 2018, the Board, among other actions, remanded the Veteran’s appeal for a TDIU to the AOJ for the completion of actions agreed upon by the parties in the Court-endorsed Joint Motion. The Board’s November 2018 remand directives and the subsequent actions of the AOJ will be discussed in detail below. The Veteran’s appeal has been returned to the Board for further appellate consideration. 1. Entitlement to a TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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) (2018). 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. 38 C.F.R. § 4.16(b) (2018). 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. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a) (2018). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). Analysis The Veteran filed a formal claim for a TDIU in June 2012, during the pendency of an appeal seeking an increased initial evaluation for service-connected PTSD that stemmed from a claim filed on January 14, 2011. As such, the appeal period for the Veteran’s TDIU appeal is from January 14, 2011, to the present. 38 C.F.R. § 3.400 (2018); Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). As an initial matter, the evidence of record reflects that the Veteran last participated in a substantially gainful occupation in approximately 2000, and his combined evaluation meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) throughout the entire appeal period (since January 14, 2011). As such, the question before the Board is whether the most probative evidence of record reflects that his service-connected disabilities, acting alone or in concert, rendered him incapable of securing or following a substantially gainful occupation at any time from January 14, 2011, to the present. With the above in mind, the Board observes that, in Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether his or her service-connected disabilities, alone, are of sufficient severity to produce unemployability. Factors to be considered are the Veteran's “education, employment history and vocational attainment.” See 38 C.F.R. § 4.16. The record reflects that the Veteran completed three years of high school before joining the Army. After his service separation, the Veteran attained a High School Equivalency Certificate and completed one year of college education, but he has had no other specialized and/or vocational training. The Veteran reported having “several jobs” after his service separation, to include as a timeshares salesman and a “factory representative;” however, none were long-held due to missed work, irritability, and angry outbursts – all of which were attributed by the March 2012 and March 2013 VA to the Veteran’s longstanding alcohol dependence, which was noted to be his primary psychiatric diagnosis. To this point, the medical evidence unambiguously shows a strong correlation between the Veteran’s alcohol abuse and his service-connected PTSD. Specifically, the Veteran’s excessive alcohol consumption began during his active duty, after he suffered the personal trauma that serves as the impetus of his service-connected PTSD. In the Court-endorsed Joint Motion, the parties agreed that the Board erred in denying the Veteran’s TDIU appeal in the June 2015 decision on two specific points. First, the Board did not provide adequate reasons and bases for the conclusion that the Veteran’s service-connected disabilities did not preclude “sedentary employment.” Second, as the evidence showed a possibly causative relationship between the Veteran’s service-connected PTSD and his alcohol dependence, and the latter negatively impacted his employability, the claim of entitlement to service connection for alcohol dependence secondary to service-connected PTSD was reasonably raised by the record and intertwined with the appeal seeking a TDIU. To cure this second deficiency, the parties agreed, and the Court directed by virtue of the Order that endorsed the Joint Motion, that the Board must (1) refer the issue of entitlement to service connection for alcohol dependence as secondary to the Veteran’s service-connected PTSD to the AOJ for development and adjudication in the first instance and (2) defer readjudication of the Veteran’s TDIU appeal in favor of intertwined claim referred to the AOJ. In the November 2018 remand, the Board implemented the parties’ agreement in the Joint Motion concerning the referral and deferral, further instructing the AOJ that, as per the law of the case expressed in the Court-endorsed Joint Motion, readjudication of the Veteran’s TDIU appeal would be improper until the referred claim and any resulting appeal was adjudicated/readjudicated to finality. Consequent to the Board’s November 2018 remand directives, the AOJ obtained an October 2019 VA psychiatric examination that reflects the examiner’s medical opinion that the Veteran’s alcohol dependence is not a separate disability, as previously diagnosed; rather, it is, and always has been, a symptom of his service-connected PTSD, and the effects of the former are and were subsumed under the diagnosis of the latter. Based on the October 2019 VA examiner’s opinion, the AOJ denied the referred claim of entitlement to service connection for alcohol dependence as secondary to service-connected PTSD in a March 2020 rating decision, and readjudicated the Veteran’s TDIU appeal in a March 2020 Supplemental Statement of the Case (SSOC). The Board observes that the AOJ’s readjudication of the Veteran’s TDIU appeal during the appeal period of the rating decision that denied the referred claim is contrary to the parties’ agreement in the Joint Motion, the Court’s Order that endorsed such, and the Board’s unambiguous November 2018 remand directives. Notwithstanding the AOJ’s noncompliance with the Board’s November 2018 remand directives and law of the case, as endorsed by the Court, the Board concludes that a remand to cure such is unnecessary in the present case, as the evidence of record supports a full grant of the benefits sought on appeal. Soyini v. Derwinski, 1 Vet. App. 540 (1991). As detailed above, the evidence shows that the Veteran’s longstanding alcohol dependence, more so than his service-connected PTSD, negatively impacted his employability to the point where he could not secure or maintain a substantially gainful occupation. As such, the Veteran’s TDIU appeal could succeed if service connection for alcohol dependence is established secondary to his service-connected PTSD under 38 C.F.R. § 3.310 and Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). This theory of entitlement served as the basis for the Board’s November 2018 remand and the subsequent requests for development and adjudication. While the AOJ denied service connection for alcohol dependence as secondary to the Veteran’s PTSD, this is not fatal to the Veteran’s TDIU appeal due to the careful wording of the October 2019 VA examiner’s opinion. Specifically, the examiner opined that the Veteran’s alcohol abuse does not meet the criteria for a separate disability, and thus, the examiner opined that such is, and always has been, a symptom of his service-connected PTSD. While this opinion weighs against the Veteran’s claim to establish service connection for alcohol dependence, it is in favor of a finding that the Veteran’s alcohol abuse, and the effects of such, must be considered as a symptom of his PTSD – which is a service-connected disability. This point was conceded by the AOJ in the March 2020 rating decision that denied the referred claim to establish service connection for alcohol dependence; however, this finding also bolsters the Veteran’s appeal for a TDIU. In sum, the Board finds that VA may consider the effects of the Veteran’s alcohol abuse on his employability if (a) service connection for alcohol dependence/abuse is established as secondary to his service-connected PTSD, or (2) the Veteran’s alcohol dependence/abuse is determined to be a symptom and/or manifestation of a service-connected disability. In the present case, the Veteran’s private attorney only asserted the first contention; however, the evidence consequent to the Board’s directed development supports the second contention. With the above in mind, the Board concludes that the most probative evidence reflects that the Veteran’s PTSD symptoms, to include his alcohol abuse and resulting effects, has precluded him from securing and maintaining a substantially gainful occupation throughout the entire appeal period (since January 14, 2011). This conclusion is congruent with the opinions of the March 2012 and March 2013 VA examiner and several medical professionals who have provided VA outpatient and inpatient treatment. Critically, the retrospective nature of the October 2019 VA examiner’s opinion (i.e., that the Veteran’s alcohol abuse always has been subsumed by the PTSD diagnosis as a symptom of such) sheds a new light of relevance on the March 2012 and March 2013 VA examiner’s opinions, as the Veteran’s alcohol abuse, formerly dismissed as a nonservice-connected disability, may now be considered as a causative factor of the Veteran’s unemployability as a symptom of a service-connected disability. To the extent that the VA examiner who provided the March 2012 and March 2013 VA opinion stated that the Veteran could be employed in an occupation with strict supervision and clear guidelines, the Board interprets these parameters as descriptive of a sheltered workplace – which is “marginal” employment under the governing laws. 38 C.F.R. § 4.16(a). Parenthetically, while the Board has further considered whether entitlement to special monthly compensation under 38 U.S.C. § 1114(s) now warrants consideration, in view of the fact that the Veteran has only one additional compensable rating of 40 percent for residuals of rheumatic fever, there is no indication in the record that this condition has worsened, and the Veteran has not argued as such, the Board finds that entitlement to special monthly compensation does not warrant further action or consideration at this time. In sum, the record reflects that the Veteran's service-connected disabilities, (specifically, his PTSD with the symptom of alcohol abuse) rendered him unable to secure or follow a substantially gainful occupation throughout the entire appeal period (since January 14, 2011). 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2018); Gilbert, 1 Vet. App. at 53-56. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.