Citation Nr: 20031908 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 10-38 794 DATE: May 6, 2020 ORDER Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving doubt in the Veteran’s favor, his service-connected disabilities have precluded him from obtaining and maintaining substantial and gainful employment consistent with his educational and occupational experience. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1977 to September 1983 with additional Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in June 2012, a transcript of which is of record. The instant matter was remanded by the Board in December 2012, April 2014, February 2015, December 2015, November 2016, November 2017, and April 2019. These remands were primarily ordered due to the TDIU claim being intertwined with other matters being developed. Indeed, the most recent remand was entered so that the Agency of Original Jurisdiction (AOJ) could adjudicate the Veteran’s claim for service connection for posttraumatic stress disorder (PTSD); this issue was granted in June 2019. While the Veteran has filed a Supplemental Claim (VA Form 20-0995) disagreeing with the rating assigned for his psychiatric disability and his rating could possibly change, the Board finds that given the 11 year history of this claim and the AOJ’s compliance with prior remands, final adjudication of the TDIU claim is warranted at this time. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand). In fact, given the grant of a TDIU herein, even if the AOJ later decides to increase the Veteran’s rating for his psychiatric disability, such will only impact the Veteran’s overall compensation in certain circumstances and the AOJ is well equipped to deal with that if/when it happens. In a November 2019 submission, the Veteran seems to have requested that the Board reconsider the November 2017 denial of service connection for a neck and back disorder. The Board will reply to this submission in the near future. TDIU The Veteran contends that throughout the appeal, he has been unable to obtain and maintain substantially gainful employment due to his service connected psychiatric disability (rated as 50 percent disabling), peptic ulcer disease (PUD) (rated as 40 percent disabling), and pes planus (rated as 30 percent disabling). Specifically, he claims he has been terminated from employment due to his service-connected symptoms and absenteeism related to treatment thereof, cannot stand or walk for prolonged periods due to his pes planus, and that employers refuse to hire him due to his disclosed disabilities. Importantly, his service-connected disabilities, which result in a combined evaluation of 80 percent, satisfy the schedular criteria for a TDIU that is set forth in 38 C.F.R. § 4.16 (a). In adjudicating a TDIU claim, VA must consider the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). After a review of the evidence of record and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment. To determine whether a veteran’s service-connected disabilities preclude gainful employment commensurate with his or her educational and work history, an inventory of such histories is required. In this case, the Veteran’s educational achievements include graduating from high school, taking vocational courses in electronics, and taking a training course in real estate. Turning to his employment history, the evidence of record, including Applications for Increased Compensation from January 2008 and December 2017, indicates that the Veteran has worked in a myriad of roles including: postal worker, quality assurance agent, bus driver, home inspector, poultry grader/slaughterer, gas station attendant, sales person, maintenance worker, “packer”, assembly worker, automotive worker, and warehouse worker. Based on his reported work history and the tasks associated therewith, the question becomes whether his service-connected psychiatric disorder, PUD, and pes planus would prevent him from obtaining and maintaining substantially gainful employment in unskilled and somewhat physical employment, where interactions with others is likely. Turning first to the impairment his psychiatric disability would cause, the Board finds that such disorder would greatly impact the Veteran’s ability to obtain and maintain employment. In this regard, VA clinicians and examiners in February 2012, April 2018, February 2019, and June 2019 found that the Veteran’s psychiatric disorder was hallmarked by difficulty adapting to stressful situations including work environments, easy distraction, irritable mood, interfering thoughts, difficulty functioning around people, difficulty being part of a team, suspiciousness, anger, trust issues, and anxiety. While one could easily speculate that these symptoms would greatly impact employment prospects, that is not necessary in this case as there is ample evidence to support such a finding. Specifically, the record indicates that the Veteran’s employment with the United States Postal Service (USPS) and the United States Department of Agriculture (USDA) were both terminated due to his psychiatric symptoms. In fact, there is evidence in the record that these agencies attempted to fire the Veteran from employment, but due to his filing of discrimination allegations against them, he was ultimately allowed to resign. In this respect, an October 1989 document indicates that USPS agreed to stop removal actions against the Veteran and expunge his employment record if he agreed to resign. Thereafter, in October 1990, the Veteran attempted to apply for work with the agency again and was rejected, which he claimed was discriminatory. In response thereto, in December 1990, the Veteran’s USPS supervisor completed a questionnaire regarding the Veteran’s employment history and indicated the Veteran had not received any awards, he was hostile towards management and his fellow co-workers, numerous corrective actions were taken in attempt to correct the Veteran’s behavior, the Veteran consistently needed help to perform his job, he had difficulty learning new responsibilities, he was unreliable in attendance, he received complaints from customers, he did not get along with others, and in general he had an unsatisfactory performance history; the Veteran’s former supervisor objected to his returning to work with USPS. As such, in October 1991, following an investigation, the Veteran’s discrimination claim was denied as there was sufficient evidence that the Veteran was not being considered for reinstatement due to non-discriminatory reasons including poor past work history (attendance and performance), poor conduct, and a poor safety record. Based on the medical evidence of record indicating that the Veteran’s psychiatric disability caused him difficulty in getting along with others, anger, suspiciousness, irritability, and trust issues, it is reasonable to conclude that these symptoms caused or at least contributed to his problems with the USPS, especially when considering the December 1990 reports from his supervisor regarding the nature of his workplace problems. While the USPS ultimately reported in 1992 that the Veteran resigned for unknown personal reasons, this was apparently stated due to a settlement agreement between the Veteran and the agency as the Veteran himself submitted the evidence revealing the “behind the scenes” interaction between him and the postal service revealing the true circumstances regarding his employment with the agency. There is also evidence to suggest the Veteran’s psychiatric disability caused him great difficulty while working for the USDA. In this regard, while the Veteran did receive several years of fully satisfactory yearly evaluations, the evidence also indicates that like the USPS, the USDA attempted to terminate the Veteran, but he challenged such on the basis of discrimination and a settlement was reached whereby he was allowed to resign. The complete history leading to the attempted removal proceedings is a bit unclear as all of the evidence related to such was submitted by the Veteran in piecemeal fashion, but it appears he was counseled on his abuse of leave in May 2003, was placed on administrative leave in August 2004, and that he had two separate suspensions while working for the agency. Additionally, a January 2004 memorandum indicates that a colleague reported the Veteran for his poor performance and that a supervisor observed him on the job to confirm such and provide training to the Veteran regarding proper practices. Apparently, the Veteran became angry and combative such that it was deemed unacceptable. Moreover, when his work was observed and training was offered, the Veteran refused training from his supervisor in an unacceptable manner. Relatedly, the record also includes an undated agreement between the Veteran and a supervisor indicating that the Veteran had filed a complaint against his supervisor alleging improper treatment. Thus, it again appears that the Veteran’s trust problems, suspiciousness, anger, and difficulty getting along with others, which were caused by his psychiatric disability, all interfered with the Veteran’s ability to maintain employment. Further, the record itself is rife with evidence that the Veteran’s psychiatric disability would impede his ability to maintain substantially gainful employment due to his psychiatric symptoms causing trust issues, anxiety, and suspiciousness. Specifically, on numerous occasions the Veteran has expressed his belief that VA is actively working against him - he has challenged the contents of virtually every examination report, the dating of documents in his record, the source of documents he himself provided, the numbering of pages, and more. In short, like the USPS and the USDA, the Veteran’s psychiatric symptoms have led him to engage in combative behavior with VA. Medical professionals have also found that the Veteran’s psychiatric symptoms would interfere with his ability to obtain and maintain substantially gainful employment. As noted above, in February 2012 a VA examiner opined that the Veteran would have difficulty adapting to stressful situations at work, would have problems in environments with multiple expectations/stress, and he would be distracted by his physical impairments. While the examiner also opined that the Veteran could perform structured, repetitive tasks, this conclusion is refuted by the fact that the Veteran was actually unsuccessful in performing in such a role at the USDA. To the contrary, he had significant problems interacting with his colleagues and supervisors. This fact is supported by an April 2018 examiner’s findings that the Veteran had significant difficulty functioning around people, working as a team member, and had significant suspicion as to other people’s motives, which would negatively impact his working relationships. Similarly, in October 2018 a VA clinician noted that the Veteran’s 30-plus year history of anxiety symptoms caused problems in the workplace and in June 2019 an examiner noted the Veteran would be easily distracted, argumentative, and would have difficulty in maintaining relationships. Finally, the Veteran’s sister, who he reported is a nurse, has intimated that he had lost employment due to his psychiatric symptoms. In short, medical professionals’ opinions as to the Veteran’s employability support the Board’s finding that his psychiatric symptoms would interfere with his ability to obtain and maintain employment as he would not be able to effectively interact with co-workers, supervisors, or customers. (Continued on the next page)   In addition, the Board finds that the Veteran’s PUD and pes planus would interfere with his employment, even if he could find solitary, unsupervised work. Specifically, the Veteran uses a cane to ambulate due to his pes planus and using such would be difficult in positions the Veteran has previously held in factories and as a delivery person. Similarly, while outside the appeal period, there is also medical evidence indicating that the Veteran historically missed work due to his PUD. In addition, in October 2005, the Veteran was disqualified from retention in the United States Army Reserves due to his PUD and psychiatric disorder, indicating that his PUD would indeed impact his occupation. Although some VA examiners have intimated that the Veteran would be able to work in sedentary employment, the Board must consider the Veteran’s employment history in determining whether he could obtain and maintain employment, and his record does not reveal experience in sedentary positions. To the contrary, he walked on his postal route and stood on the inspection line at the USDA. Some records indicate he performed sedentary employment as a housing inspector, but this has specifically been reported as part-time or ad hoc employment which the Board does not consider substantially gainful. Indeed, the Board finds it is unreasonable to assume that the Veteran’s work history would enable him to find and maintain employment in a solitary, sedentary position since he has never worked in such a position. While some VA examiners have indicated the Veteran’s service-connected disabilities would not in and of themselves preclude employment and the Veteran has occasionally reported interference with employment due to non-service connected disabilities like his neck and back, the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual question rather than a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Additionally, the Board affords significant probative value to the employment records associated with the Veteran’s USDA and USPS work and finds both are reflective of his inability to maintain gainful employment. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that an award of TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. GIELOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Sosna, 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.