Citation Nr: 20060367 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 18-43 384 DATE: September 14, 2020 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, effective from December 7, 2010. FINDINGS OF FACT 1. The combined service-connected disability rating for all the Veteran’s service-connected disabilities is 70 percent from December 7, 2010 and 90 percent from October 5, 2019. Therefore, the schedular percentage criteria for TDIU are met throughout the entire appeal period beginning on December 7, 2010. 2. Effective December 7, 2010, the Veteran’s service-connected PTSD disability, standing alone, prevents him from securing or following a substantially gainful occupation, consistent with his vocational and educational background. CONCLUSION OF LAW Effective December 7, 2010, the criteria have been met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25 (2019); Harper v. Wilkie, 30 Vet. App. 356, 360 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from July 1978 to August 1981 in the U.S. Army. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). This case was previously before the Board. In a July 2019 Board decision, the Board denied the TDIU issue on appeal and also denied an increased rating in excess of 70 percent for PTSD. The Veteran appealed the Board’s July 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court partially vacated and remanded the Board’s earlier decision for the TDIU issue, pursuant to an April 2020 Joint Motion for Partial Remand (Joint Motion). The Veteran did not challenge the Board’s denial of an increased rating in excess of 70 percent for PTSD. Therefore, the appeal of that issue was abandoned by the Veteran and dismissed by the Court. See Cacciola v. Gibson, 27 Vet. App. 45, 47 (2014). For the TDIU issue, the reasons for the Court’s Order and the specific instructions of the Joint Motion will be discussed in further detail below. In any event, this case has now returned to the Board to implement the Joint Motion’s instructions. I. VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019). VA’s duty to notify the Veteran for the TDIU issue was met by a VA letter dated April 2015. In the decision below, the Board has granted the Veteran’s claim for a TDIU. Therefore, the benefits sought on appeal have been granted in full for the TDIU issue. Accordingly, regardless of whether the notice and assistance requirements have been met with regard to the TDIU issue, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment 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). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Court recently defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means that the occupation must be one where the veteran can earn 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). TDIU must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s TDIU claim stems from a December 7, 2010 informal claim for service connection for a psychiatric disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a TDIU can be part and parcel of an increased or initial rating claim). In other words, the appeal period for consideration of the TDIU issue begins on December 7, 2010. From December 7, 2010 to October 5, 2019, the Veteran is service-connected for only one disability: PTSD, rated as 70 percent disabling. The combined service-connected disability rating during this timeframe is 70 percent. See 38 C.F.R. §§ 4.16(a), 4.25 (combined ratings table). Therefore, the schedular percentage criteria for a TDIU are met beginning on December 7, 2010. 38 C.F.R. § 4.16(a). Effective October 5, 2019, the Veteran is service-connected for the following disabilities: PTSD, rated as 70 percent disabling; coronary artery disease, rated as 60 percent disabling; and hypertension, rated as 0 percent disabling. The combined service-connected disability rating is 90 percent. 38 C.F.R. §§ 4.16(a), 4.25. Therefore, the schedular percentage criteria for a TDIU are met as well on October 5, 2019. 38 C.F.R. § 4.16(a). The Board is cognizant of the Court’s holding that a grant of TDIU that covers only part of the period on appeal does not end the TDIU analysis. See Harper v. Wilkie, 30 Vet. App. 356, 360 (2018). The Board retains jurisdiction of the remaining, unresolved portion of the appeal period for TDIU. Id. Consequently, the only remaining question here is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). As to the relevant background facts, the Veteran is currently 62 years old. The Veteran last worked in 2006. He had two years of college. His vocational history since the 1980s included employment as a train conductor, dispatcher, truck driver, laborer, and security officer. A June 2008 Social Security Administration (SSA) decision awarded the Veteran SSDI benefits due to “severe” impairment from multiple service-connected and nonservice-connected disabilities: low back pain, hypertension, COPD, a myocardial infarction, depression, and borderline intellectual functioning. The SSA determined that considering his age, education, work experience, and residual functional capacity, no jobs exist in significant numbers in the national economy that the Veteran can perform. The Board previously denied the TDIU issue in a July 2019 Board decision. But according to the April 2020 Joint Motion, the Board erred by providing an inadequate statement of reasons or bases for its denial. 38 U.S.C. § 7104(d)(1). Such statement must be adequate so as to inform an appellant of the basis for the Board’s decision and to facilitate informed review by the Court. Allday v. Brown, 7 Vet. App. 517, 527 (1995). Specifically, in addressing whether the Veteran was entitled to a TDIU, the Board relied heavily on a statement from the Veteran that he “stopped working after his heart attack, a non-service connected disability.” However, the Joint Motion found that this statement is a “mischaracterization” of the evidence of record, as the Veteran also stated at a March 2011 VA psychology examination that he was granted SSDI after suffering a heart attack and experiencing regular anxiety attacks. The Joint Motion pointed out that the March 2011 VA psychology examiner noted the Veteran collects SSDI for both “emotional” and “physical” disabilities) (emphasis added). As such, on remand, the Board was instructed to address the entirety of Veteran’s statement and provide adequate reasons or bases in determining whether the Veteran is entitled to a TDIU. Upon review, in the present case, the Board grants the appeal for an award of a TDIU rating under 38 C.F.R. § 4.16(a). That is, the medical and lay evidence of establishes that the Veteran’s service-connected PTSD prevents him from securing or following substantially gainful employment throughout the entire appeal period, beginning December 7, 2010. Id. The following evidence of record supports the award of a TDIU based on his 70 percent rated PTSD disability: a July 2020 private rehabilitation counselor opinion; September 2018 VA SARRTP integrated summary and psychology note; September 2018 VA mental health treatment plan note; May 2015 VA pulmonary consult; and June 2008 SSA decision (reflecting that in addition to functional limitations, the Veteran would be unable to meet the mental demands of a competitive work activity due to his depression and borderline intellectual functioning). In recent 2018 and 2019 VA treatment records, the Veteran underwent inpatient treatment due a relapse of his substance abuse disorder (a crack cocaine and alcohol dependence). The Board emphasizes that the earlier March 2011 VA psychology examiner assessed that the Veteran “self-medicated” his service-connected PTSD / psychiatric problems with cocaine, marijuana, and alcohol. Finally, although the Veteran initially stopped working in 2006 due to his now service-connected coronary artery disease, the above evidence of record establishes that by 2010 the effects his severe service-connected PTSD prevented him from securing or maintaining substantially gainful employment. The Board adds that even though the Veteran’s PTSD does not cause the “total occupational and social impairment” required for a 100 percent rating under 38 C.F.R. § 4.130 (Diagnostic Code 9411), this does not prevent the Board from finding the Veteran is unable to secure and follow substantially gainful employment, the latter being the appropriate, less onerous requirement for establishing a TDIU. Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). Accordingly, the TDIU appeal is granted, effective back to December 7, 2010 (date of initial rating claim). 38 C.F.R. § 4.3. In making this determination, the Board emphasizes that in the present case, the TDIU award is based solely on the effects of the Veteran’s service-connected PTSD disability, as opposed to a combination of his multiple service-connected disabilities including his coronary artery disease. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). A TDIU rating based on multiple service-connected disabilities would not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C. § 1114(s). Bradley, 22 Vet. App. 290-91. Effective December 7, 2010, but at no time prior, it is apparent from the record that the Veteran’s service-connected PTSD disability, standing alone, would prevent him from working. Beginning on October 5, 2019, the additional effects of his subsequently service-connected coronary artery disease further add to his unemployability. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.