Citation Nr: 21000794 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-62 036 DATE: January 6, 2021 ORDER For the appellate period prior to January 24, 2003, entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT For the appellate period prior to January 24, 2003, the evidence is in equipoise as to whether the Veteran was rendered unable to maintain gainful employment due to his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW For the appellate period prior to January 24, 2003, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from September 1968 to March 1973. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Procedural History As detailed below, this matter has a complex procedural history. In an October 2014 decision, the Board granted service connection for PTSD. In a November 2014 rating decision, the RO effectuated the Board’s grant of service connection for PTSD and assigned initial ratings of 10 percent (effective November 25, 1998), 50 percent (effective March 15, 2012), and 30 percent (effective September 12, 2013). In an October 2016 rating decision, the RO awarded a 70 percent rating for PTSD, effective October 17, 2016. In a January 2019 decision, the Board assigned PTSD ratings of 30 percent (effective November 25, 1998) and 50 percent (effective November 11, 2006). The Board denied a disability rating in excess of 70 percent beginning October 17, 2016. In a November 2019 rating decision, the RO awarded a TDIU, effective August 3, 2015. The Veteran timely appealed the Board’s January 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which by way of an April 2020 Order granted a Joint Motion for Partial Remand that found that the Board erred when it failed to provide adequate statements of reasons and bases for its determinations that the Veteran was not entitled to ratings higher than 30 percent and higher than 50 percent for PTSD for the above-mentioned rating periods. In a July 2020 decision, the Board awarded an initial rating of 70 percent for PTSD for the entire period on appeal (effective November 25, 1998) and remanded entitlement to a TDIU for the appellate period prior to August 3, 2015. In an October 2020 rating decision, the RO awarded a TDIU, effective January 24, 2003. As the RO did not award a TDIU for the entire period on appeal, entitlement to a TDIU for the appellate period prior to January 24, 2003 remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a TDIU for the appellate period prior to January 24, 2003 It is the established policy of VA that all veterans who are unable to secure and maintain 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). Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. See 38 U.S.C. § 1155. Here, the Veteran is service connected for PTSD, rated as 70 percent disabling from November 25, 1998. Therefore, the Veteran has met the schedular requirement for a TDIU under 38 C.F.R. § 4.16(a) since November 25, 1998. The remaining question is whether the Veteran’s service-connected PTSD precluded the Veteran from securing and following a substantially gainful occupation during the appellate period prior to January 24, 2003. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. at 363. Thus, the central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). After careful consideration of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran was unemployable by reason of his service-connected PTSD for the appellate period prior to January 24, 2003. Specifically, the Board finds that the Veteran would not have been able to maintain any type of employment that was relevant to his educational background and work experience. In this regard, the Board notes that in Ray v. Wilkie, the Court 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 an occupation earning 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. See Ray v. Wilkie, 31 Vet. App. 58 (2019). As to the economic component of a substantially gainful occupation, the Board finds that the Veteran was either unemployed or did not have an occupation earning more than marginal income during the appellate period prior to January 24, 2003. In his TDIU claim applications dated April 2019, February 2020, and April 2020, the Veteran reported that May 1991 was the date his disability affected full-time employment, the date he last worked full-time, and the date he became too disabled to work. In an October 2002 VA psychiatry medication management note, the Veteran indicated that his last job was 12 to 14 years prior, and during the March 2005 VA PTSD examination, he reported that he had not been employed for 12 years. In an April 2008 VA mental health medication management note, the Veteran stated that he was unable to work more than “odd jobs” for about 15 years. The Board acknowledges that during the March 2012 VA PTSD examination, the Veteran reported that after he was laid off 15 years earlier, he was self-employed as a mechanic but had to stop due to zoning laws, and during the September 2013 VA PTSD examination, the Veteran reported that he had worked on old cars, bought and sold cars and parts for a living for many years, and he sold items on eBay but reportedly stopped after the IRS audited him. To the extent that the Veteran pursued these activities during the appellate period prior to January 24, 2003, there is no indication that these activities earned more than marginal income. Indeed, the Veteran reported in an October 2020 Statement in Support of Claim that he could not provide any records regarding his earnings between 1991 and 2008 as he did not earn enough to file income taxes, that his income varied and was minimal, and reiterated that he has not had gainful employment since 1991. Thus, after resolution of all reasonable doubt, the Board finds that the Veteran did not work in a gainful capacity at any point during the period on appeal. As to the non-economic component of a substantially gainful occupation, the Veteran’s work history was primarily as a mechanic, truck driver, and equipment operator. The Veteran’s former occupations required skills such as concentration, motivation, the ability to follow directions, the ability to establish and maintain effective relationships, and the ability to adapt to stressful circumstances. These skills were severely impacted by the Veteran’s service-connected PTSD and its associated symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Based on the foregoing, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that a TDIU predicated on unemployability stemming from the Veteran’s service-connected PTSD is warranted for the appellate period prior to January 24, 2003. Finally, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran’s only service-connected disability is PTSD. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.