Citation Nr: 20046292 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 13-09 028A DATE: July 10, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his service-connected posttraumatic stress disorder (PTSD) renders him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a total disability rating based on individual unemployability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the Army from October 1969 to August 1977. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2018 decision, in part, the Board found that the issue of entitlement to a TDIU was raised by the record during adjudication of the Veteran’s claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU is part and parcel of an increased rating claim when such claim is raised by the record). Additionally, in March 2016, the Veteran had a Board hearing which, in part, addressed his claim for an increased rating for PTSD. However, the Veterans Law Judge (VLJ) who conducted the March 2016 Board hearing is no longer employed by the Board. As the claim for entitlement to a TDIU rating was raised as part and parcel of the PTSD increased rating claim and because the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal, the Veteran was offered the opportunity to have another Board hearing. See April 2020 Board correspondence. As the Veteran did not respond, the Board assumes that the Veteran did not want another hearing and will proceed using the March 2016 Board hearing transcript, as well as all evidence of record. Entitlement to a TDIU rating VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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 is service-connected for PTSD at 70 percent disabling, right wrist disability status post navicular fracture at 10 percent disabling, status post right distal fibula facture at noncompensable, right cheek scarring at noncompensable, left forearm scarring at noncompensable, and forehead scarring at noncompensable. The Veteran’s combined evaluation for compensation is 70 percent. As such, the Veteran meets the schedular criteria for TDIU. Although the Veteran’s service-connected PTSD is not rated at 100 percent disabling, the Board finds that he is entitled to a TDIU rating due to his PTSD. As noted in his VA treatment records, the Veteran has been unemployed since June 2014 and, with resolution of reasonable doubt in his favor, the Veteran’s disability renders him incapable “of performing the physical and mental acts required by employment.” See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 3.102, 3.341, 4.16(a), 4.19. Turning to the evidence relevant to the award of a TDIU, the record reflects that the Veteran quit school in the 10th grade and later obtained his G.E.D. in 1977. He took ICT programming to prepare him to work in textiles following school and received some on the job training as a mechanic. The record also reflects that in the 25 years following service, the Veteran worked as a mechanic and in maintenance for three different companies. The record shows that the Veteran last worked in June 2014. In September 2018, the Veteran underwent a VA examination to determine the severity of his PTSD. The examiner noted that the Veteran’s PTSD symptoms include depressed mood, anxiety, suspiciousness, panic attacks that occur more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, disturbances of motivation and mood, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, and impaired impulse control, as well as difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a worklike setting. The September 2018 VA examiner concluded that, due to the severity of the Veteran’s PTSD symptoms, it is unlikely that his service-connected disabilities would allow him to function satisfactorily in an occupational environment. In reaching this conclusion, the examiner noted that the Veteran’s functional limitations due to his PTSD include frequent panic attacks, irritability and anger outbursts, suspicious and sometimes full-blown paranoid ideation, social avoidance, daytime sleepiness due to impaired night sleep, hypervigilance, and interpersonal impairments. In November 2019, an additional VA medical opinion was obtained. After reviewing the claims file, the examiner opined that the Veteran’s levels of anxiety, depression, decreased stress tolerance, difficulty with attention concentration and interpersonal relationships, etc. would be expected to cause moderate occupational impairment in most typical fulltime job settings. Additionally, the examiner noted that the Veteran has have some improvement but is still symptomatic. Based on the September 2018 VA examiner’s opinion and characterization of the symptoms relevant to the Veteran’s ability to meet the demands of employment - particularly his difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, along with his other psychiatric symptoms - the Board finds that the Veteran’s PTSD precludes him from obtaining and maintaining gainful employment. While the November 2019 examiner opined that the Veteran’s PTSD would only cause moderate occupational impairment, such opinion was based on review of progress notes from the Veteran’s psychiatric appointments, compared to the September 2018 examiner’s opinion, which was based on a complete mental health examination. Furthermore, while the November 2019 examiner noted some improvement, he reported that the Veteran’s PTSD is still symptomatic. (Continued on the next page)   Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds he is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD and entitlement to a TDIU rating is warranted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, Associate 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.