Citation Nr: 20042322 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 17-62 821 DATE: June 22, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT Throughout the relevant period, the Veteran was unable to secure and follow a substantially gainful occupation as a result of service-connected disability. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who served on active duty from April 1977 to March 1979, appeals the denial of TDIU. TDIU It is the established policy of 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. A finding of total disability is appropriate “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.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU is granted The Veteran contends that manifestations of his service-connected bipolar disorder realistically render him unemployable. The Board agrees. Initially, the Board notes that the Veteran meets the basic schedular rating criteria to be considered for TDIU set forth at 38 C.F.R. § 4.16 (a) inasmuch as he is rated 70 percent for bipolar affective disorder from June 1, 2015. The Veteran filed his TDIU claim in June 2015. He indicated that he stopped working at Alpha Paper Products in December 1988, where his work was as a saw boy. He worked in 1987 at Exxon as a gas attendant, in 1985 and 1986 at Raritan Valley Garage picking up trash, at Dot exterminating in 1984 and 1985 as a technician, and as a forklift driver at Alpha during these time periods. He reported 2 years of college as well as training in service as a disbursement accounting specialist. He described leaving his post-service jobs because of depression and mood swings. He felt like he wanted to hit his managers. He could not hold any job for over a year except at Dot because there no one got on his nerves. He stated he has a problem with authority which was demonstrated while in service and out of service. See VA form 8940 filed in June 2015. Two medical opinions are of record that pertain to this claim. First, a VA psychologist in July 2015 observed occupational and social impairment with reduced reliability and productivity. The Veteran reported outbursts, snapping at his wife and problematic family relations. He reported that anger problems prevented him from keeping a job. Symptoms included depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationship. The examiner summarized that the Veteran would likely be capable of understanding, remembering, and carrying out simple instructions. He may experience mild difficulty understanding, remembering, and carrying out complex instructions. He may experience moderate difficulty responding appropriately to supervision and relating effectively to co-workers. He would likely be capable of sustaining adequate concentration. He may experience moderate difficulty sustaining persistence and pace and adapting to change from a mental health perspective. Second, J. A., Jr., a non-VA psychologist, found in August 2017 that the Veteran was more severely limited in terms of his occupational functioning due to his mental health disorder. Dr. A. reviewed ‘pertinent’ medical records and made a detailed recitation of the Veteran’s mental health and work history and current manifestations and mental status. He observed that the Veteran is displaying a diffuse “vegetable soup” type of mixed neurotic syndrome. Dr. A. noted that the Veteran’s mental health problems included the stressor of being sexually assaulted in service. He observed that all and all the Veteran’s occupational and social impairment was productive of deficiencies in most areas. Dr. A. stated that the prognosis was fair with treatment and poor without treatment. Recently, it has been asserted by the Veteran and his attorney that the Veteran is homeless. In May 2020, the Veteran’s attorney argued that TDIU should be granted as the Veteran has consistently complained of and had treatment for significant bipolar symptoms. She noted that, most frequently, he describes near-total social isolation, due in large part to his documented and recurrent struggles with anger, irritability, and outbursts. He has recently struggled with suicidal ideation and feelings of worthlessness or hopelessness, as documented in 2019 VA treatment records. The attorney further argues that the recent findings are essentially supported by the VA and non-VA examination record reflecting his near-constant struggles with anger and isolation. She contends that Dr. A.’s evaluation in particular mirrors many of the treatment records, reflecting uncontrolled anger issues, isolation, sleep disturbances, draining fatigue, obsessive thoughts and rituals, paranoia and other symptoms indicative of extreme social and occupational impairment. She cites to his repeated report of not being able to keep employment due to anger. She asserts that the stresses of full time employment are far too great for the Veteran to reliably manage. The Board finds these assertions as to the impact of the disability on the Veteran’s work ability to be reasonable and not inconsistent with the documented record. It is certainly not in dispute that this Veteran has an education and has some remote previous work experience. However, upon consideration of the statements of the Veteran and the actual findings on the VA and non-VA examinations, the Board finds that the evidence is at least evenly balanced for and against this claim. Here, the Board finds that the reference to the residual ability to perform some level of work, particularly in the VA examination, is not irrefutable when one looks at the totality of the record. The bipolar disorder, when viewed in practical terms, renders him unemployable in this particular case, in the Board’s opinion. We are presented with a Veteran with significant psychiatric impairment who has not sustained work for years. The record is replete with reference to his anger issues, interpersonal difficulties and difficulty with authority due to his bipolar condition. The argument made by counsel is compelling under the unique facts of this case. The Board finds that he indeed meets the criteria for TDIU. Accordingly, TDIU is granted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.