Citation Nr: 21001083 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-22 132A DATE: January 7, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The medical and other evidence of record reasonably demonstrates that the Veteran's service-connected PTSD has made him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from March 2004 to November 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded in November 2018 and August 2020. It has been returned to the Board for appellate review. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims Court defined substantially gainful employment as “an occupation that provides an annual income that exceeds the poverty level threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned income.” In reaching such a determination, 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 level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16(a), provide for TDIU when, due to a service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disabilities sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Based on the award of a 70 percent rating for his PTSD, the Veteran meets the schedular criteria for TDIU. The Veteran has asserted that his service-connected PTSD renders him unable to work. The Veteran’s private medical records, including an April 2016 psychiatric assessment, and May 2016 and August 2020 VA examination reports lists his symptoms and the difficulty he had at work due to his PTSD. Preliminary, the Board notes that on two occasions, in September 2019 and August 2020, the RO requested the Veteran provide a completed VA Form 21-8940 in support of this claim. To date, the form has not been submitted by the Veteran. Thus, the RO denied the claim in its last adjudication of the matter. However, the Board notes that, while expected, there is no legal requirement to submit the form. Moreover, in this case, the form is unnecessary because the Veteran has only held one job following his discharge from service, and the record contains sufficient evidence from other sources, including a statement from the Veteran, private treatment records; an April 2016 psychiatric assessment, a May 2016 VA examination, and an August 2020 VA examination, to evaluate and adjudicate the claim. In an April 2018 statement, the Veteran reported that he worked as a contractor for a company on Fort Bragg. He held the job following service for six years. During that time, his job position changed three times due to the impact of his PTSD symptoms on his job performance. For example, he initially worked as a hardware technician but was unable to continue in that role because the smell of the cooper components reminded him of the smell of blood. After being moved to an IT technician position, the Veteran continued to have problems at work. Ultimately, he resolved he was unable to work because his symptoms, including being aggressive and agitated, made it impossible for him to effectively interact with customers, his co-workers, and supervisors. He also reported that he could not think clearly, or problem-solve, and that he was nervous, anxious, scared, and got angry with co-workers for no reason. Additionally, he had difficulty showing up to work on time, and did not have good social skills so he feared losing his job. Lastly, he stated that, when working on base, bombs were ignited that caused him to cringe and seek solace in the bathroom to gather himself. In an April 2016 psychiatric assessment, the Veteran’s private physician noted the Veteran held a job as a contractor but had issues with his supervisors and co-workers. He listed symptoms and characteristics such as anger outbursts, inability to be on time due to lack of motivation, poor interacting skills, problems with focus and concentration, problem retaining information, easily distractible, impairment in decision making and confusion, and short and long term memory loss that significantly impact the Veteran’s ability to work. The physician also noted that because of his PTSD symptoms, the Veteran was criticized at work because of his work quality, had problems finishing his work on time and doing his job efficiently, got confused when given a complicated task that requires lots of thinking, was moody and agitated for no reason, and needed to be in control all the time. The May 2016 VA examiner noted that as a contractor at Fort Bragg, the Veteran had difficulty at work such as problems getting to work on time, getting his work done because of his lack of motivation, and impaired concentration related to his PTSD. An October 2020 VA examiner noted that the Veteran had been fired from his job as a contractor due to his PTSD symptoms. The Veteran indicated he was employed until October 2018. Since then, he stays to himself and works with bees as a bee keeper in his back yard. The examiner found that the Veteran’s PTSD symptoms such as difficulty interacting with people, anger, and anxiety affect the Veteran’s ability to work. She stated that the Veteran caused conflict at work, and was not able to do highly technical jobs, follow his string of thoughts, or operate in things that he has learned, knows, or has an expert knowledge in correctly because of his PTSD symptoms. She did find that it may be possible for the Veteran to do routine things that require no thought. In the examination report, the examiner included a detailed list of the Veteran’s symptoms that affect his ability to work. Specifically, she found that recurring memories affected his ability to concentrate and focus, and could produce disorientation that puts him at risk at work, recurring dreams yield him ineffective in interacting in the workplace and compromised his productivity, and dissociative reactions caused him to lose contact in real and current surroundings which would affect his ability to keep track of time, concentrate and perform his job responsibilities efficiently. Moreover, his diminished interest and detachment would affect his ability to effectively work on a team and his willingness to build relationships and job efficiency. Because of the Veteran’s hypervigilance and problems concentrating, he would have difficulty settling into a job and performing at his highest potential, lack concentration, and have difficulty learning the job. Lastly, his symptoms of depressed mood, anxiety, suspiciousness, sleep impairment, disturbances in mood and motivation, difficulties adapting to stressful circumstances, and neglect of personal appearance and hygiene would produce an inability to concentrate and focus, perform efficiently, effectively interact socially, increase social isolation, affect team morale and cohesiveness, affect his alertness and cause fatigue, increase his risk of injury on the job, make it difficult to work on a daily basis, contribute to absenteeism, limit his ability to communicate effectively, increase panic attacks and depressive episodes, and render him unprofessional upon observation. The Board has considered the evidence as well as the Veteran’s education and work history in concluding that the Veteran would be unable to function in most types of employment as a result of symptoms from his service-connected PTSD. Thus, the probative evidence of record supports a finding that the current effects of his service-connected PTSD have rendered him unable to secure or follow a substantially gainful occupation for the appeal period after his last date of employment. Thus, entitlement to a TDIU is warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.