Citation Nr: 21000023 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-18 341 DATE: January 4, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT For entire appeal period, the Veteran meets the schedular criteria for a TDIU, and his service-connected posttraumatic stress disorder (PTSD) and left-hand peripheral neuropathy have rendered him unable to secure or follow a substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1969 to September 1972. In an October 2018 decision, the Board of Veterans’ Appeals (Board) denied entitlement to a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, while the case was pending at the Court, the parties entered into a Joint Motion for Remand (JMR), requesting that the Court vacate the Board’s decision to deny service connection for an acquired psychiatric disorder. The Court subsequently granted the JMR in a November 2019 order. In April 2020, the Board remanded the issue of entitlement to a TDIU for the Agency of Original Jurisdiction to consider new evidence and issue an appropriate supplemental statement of the case. TDIU The Veteran contends that he has been unable to work due to his service-connected PTSD and left-hand peripheral neuropathy and non-service-connected chronic bronchitis. See September 2013 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability; August 2020 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability; August 2019 Rating Decision - Codesheet. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340. The Board may assign total disability ratings for compensation where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairments caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As an initial matter, the Board notes that a claim for a TDIU is a form of increased rating claim, and as such, the rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413 (1999). Therefore, though the Veteran stopped working completely in April 1998, the relevant temporal focus for this matter begins September 27, 2012, or one year prior to the date of receipt of the Veteran’s TDIU application. See 38 C.F.R. § 3.400. The Board further notes that the Veteran is currently service connected for PTSD, rated at 70 percent from June 28, 2012 until August 1, 2019, when it was decreased to 50 percent; left hand peripheral neuropathy, rated at 20 percent from June 28, 2012; diabetes mellitus type II, rated at 20 percent from December 5, 2018; diabetic peripheral neuropathy, bilateral radial nerve, each rated at 20 percent from May 31, 2017; tinnitus, rated at 10 percent from August 28, 2012; and diabetic peripheral neuropathy, bilateral sciatic nerve and femoral nerve, each rated at 10 percent from May 1, 2019.  The Veteran is also service connected for scar left groin associated with diabetes mellitus, which is noncompensable at this time.  His combined disability rating was 80 percent from June 28, 2012, 90 percent from May 1, 2019, and back down to 80 percent from August 1, 2019. Accordingly, the Veteran meets the schedular TDIU criteria for the entire period on appeal. 38 C.F.R. § 4.16(a). However, as the Veteran is currently asserting an inability to work due only to his service-connected PTSD and left-hand peripheral neuropathy and non-service-connected chronic bronchitis, the Board will only consider the Veteran’s service-connected PTSD and left-hand peripheral neuropathy. See August 2020 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. For entire appeal period, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his PTSD and left hand peripheral neuropathy. The Veteran’s August 2020 TDIU application shows that the Veteran left high school in the 10th grade but returned and obtained a General Educational Development (GED) certificate. The Veteran did not have any specialized education or training. He was last employed in 1998 for Brown Shoe as a warehouse worker. The Veteran checked “yes” to the question of whether he left his last job/self-employment because of his disability. A copy of a July 2000 Social Security Administration (SSA) decision was associated with the Veteran’s claim file in June 2014, despite other SSA records being destroyed. See May 2014 Medical Treatment Records – Furnished by SSA; June 2014 Third Party Correspondence. The administrative law judge found that the combination of chronic emphysema, bilateral rotator cuff impingement, and depression was severe, and the Veteran had not engaged in substantial gainful activity since April 1998. He noted that the Veteran’s depression caused moderate limitations in his ability to concentrate and remember detailed and complex work tasks, although the Veteran retained the ability to perform unskilled work activity. Finally, he concluded that the Veteran was unable to perform his past relevant work as a warehouseman and that the Veteran had not acquired skills in his past work that would be transferable to the skilled or semiskilled requirements of sedentary work. The Veteran underwent PTSD and peripheral nerves examinations in August 2013. The examiner found the Veteran’s PTSD was characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He noted that the Veteran’s PTSD symptoms mainly made him very standoffish and unable to connect to others, as well as startled by loud noises and larger groups of people. He also found that the Veteran’s physical ailments, most notably his lung disease and stroke, precluded any further occupational work. The Veteran reported that he worked at a factory for eight years before and after service, and though he was efficient and had no trouble carrying out his duties, he was isolated from coworkers to keep irritability and tension at a minimum. He also reported that he worked at Brown Shoe Factory for 18 years since 1977 but became sick with chronic bronchitis and emphysema in 1998. He has been on Social Security disability since 2000 and has not worked. The August 2013 peripheral nerves examiner noted that the Veteran’s peripheral nerve condition impacted his ability to work due to difficulty with grip and grasp, which is activity related. In January 2019, the Veteran appeared for another peripheral nerves VA examination. The Veteran reported he had difficulty raising his left arm due to elbow and shoulder. The examiner found Veteran’s left hand fine motor skills of grasp or grip to be affected, but the impact did not prevent sedentary or light work because he is right-hand dominate. Activities included desk work, answering telephone, filing, and other types of duties. The Veteran was afforded another PTSD VA examination in February 2019, in which the examiner concluded the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported that he discontinued his job at the Brown Shoe Factory after contracting pneumonia, bronchitis, and/or emphysema. He also reported that his current employment limitation or restriction involved his inability to deal with people due to his anger, anxiety, and depression, as well his neuropathy. The Veteran’s most current peripheral nerves VA examination was in July 2019, conducted by the same examiner that conducted the February 2019 VA examination. She provided the same opinion as in February 2019 for the functional impact of the Veteran’s left hand peripheral neuropathy. In August 2019, the Veteran again underwent a VA examination for his PTSD. The Veteran reported that he cannot work due to physical issues, including neuropathy. Furthermore, the Veteran asserts that the type of work he had experience in requires physical and strenuous labor, as well as being enclosed in tight spaces, which creates a tremendous amount of anxiety and stress. See August 2020 VA 21-4138 Statement in Support of Claim. Taking due account of the Veteran’s education and employment history, the Board finds that the severity of the Veteran’s PTSD and left hand peripheral neuropathy symptoms renders employment impossible under the circumstances of this case. Accordingly, based on the above evidence, the Board finds that the Veteran had been unable to engage in substantially gainful employment based solely on his service-connected PTSD and left hand peripheral neuropathy. Affording the Veteran the benefit of the doubt, the Board concludes that entitlement to a TDIU should be granted for the entire period on appeal. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.