Citation Nr: 21002209 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-21 904 DATE: January 13, 2021 ORDER Entitlement to a total disability evaluation due to individual unemployability is GRANTED. REMANDED Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD), major depression and alcohol abuse is REMANDED. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran’s service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSION OF LAW 1. The criteria are met for entitlement to a TDIU rating. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from February 1996 to January 2002. This case was previously before the Board in October 2018. In addition to the issues discussed in this decision, the Board remanded additional issues of entitlement to service connection for sleep disturbances, fibromyalgia, left and right shoulder disabilities, and a right ear hearing loss disability and entitlement to higher ratings for cervical spine strain, right and left knee retropatellar pain syndrome, and lumbosacral strain for the issuance of statement of the case (SOC). In October 2018, the agency of original jurisdiction issued a rating decision granting service connection for right ear hearing loss disability. This action constitutes a full grant of the benefit sought on appeal; according, the claim for service connection for right ear hearing loss disability is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The remaining issues were addressed in an October 2020 SOC. The record does not reflect that the Veteran perfected an appeal of the issues addressed in the October 2020 SOC. Accordingly, those issues are not current before the Board. 1. Entitlement to a total disability evaluation due to individual unemployability (TDIU) is granted. In August 2017, the Veteran submitted a VA Form 21-8940. Thereby, the Veteran pursued a claim for a TDIU rating. The Veteran reported that a combination of all of his service-connected disabilities prevented him from securing or following any substantially gainful occupation. The Veteran reported that he was currently working, but “reduced work hours due to disabilities, employer provides special accommodation.” 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 (West 2014). 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). 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. In February 2014, VA received a statement from the Veteran’s employer. Therein, the employer reported that, “on occasion, (the Veteran) would come to work depressed. The episodes would last only a day or so and then (the Veteran) would seem to return to his normal self.” Also, the employer reported that, “(t)hese episodes would again be only a day or two in length and would only happen once or at most twice a month.” In July 2014, VA received a statement from the Veteran, which addressed the symptoms associated with his service-connected PTSD. Therein, the Veteran posited that, “I have become increasingly irritable at work too, to the point where my boss noticed and had to talk to me. There are many days where I truly do not want to go to work or stay at work. I forget to do things for customers which causes me to lose clients and commission. I have missed many days at work due my pain and depression. I am a full time employee but only average around 30 hours a week. Finances are becoming an issue with missed work and less commission. In getting treatment, I have also missed multiple days at work.” In November 2016, VA received a statement from the Veteran’s spouse. Therein, the spouse reported that, “(h)is work is suffering and he has had many days where he doesn’t even go to work or leaves early.” Also, the spouse observed that, “(w)ork has become very stressful for him. I am afraid that someone will upset him, and he will end up hurting them. He seems to not be able to handle anything lately.” In February 2017, VA received a statement from the Veteran’s employer. Therein, the Veteran’s supervisor revealed that the Veteran has been the manager of the pro shop since August 2010. The supervisor opined that, “over the last several years, (the Veteran) is usually a great employee. On-time, performs his job with little supervision, and has grown our pro shop to be the best in town with a loyal following. His customers become his friends and hang out in the pro shop to find the latest news in the bowling world. However, on occasion, (the Veteran) would come to work depressed.” In September 2017, VA received a statement from the Veteran supervisor. Therein, the supervisor posited that, “(t)hroughout his employment, I have had some concerns with (the Veteran’s) well-being. He has tremendous mood swings that make it hard to know how to manage with (the Veteran). As our pro shop manager, his job is to oversee two employees and to work constantly with customers, so it is import for (the Veteran) to be consistent in his messages and delivery every day. On his good days, (the Veteran) is the best at what he does; however, at other times, he is almost impossible to be around and his depression not only interferes with his performance but those around him instead of giving their best, are usually just trying to stay away from him. Stresses to his outside life greatly affect his job performance. His depression, which he has communicated about openly, has made (the Veteran) go from a top performer to having to leave work immediately on some days. As his employer, having (the Veteran) not able to show up for work or call out on the spur of the moment or have him leaving during a shift makes it hard to run a business and staff correctly.” In September 2017, VA received a statement from the Veteran’s spouse, which addressed the assigned rating for his service-connected posttraumatic stress disorder (PTSD). Import to this Board analysis, the Veteran’s spouse revealed that, “(h)e has pulled away from just about everyone because he seems to not be able to keep a normal relationship with anyone. He struggles at work and seems so unhappy when he is there. It's difficult to get him to talk to me about anything, so I can't help anymore like I used to.” In September 2017, VA received a statement from a medical provider that addressed the severity of the Veteran’s service-connected PTSD symptoms. Important to this Board analysis, the provider revealed that, “(t)he Veteran is employed 36 to 40 hours per week at B and B Lanes, a bowling alley. He has a very difficult time with this job, as it requires a lot of people contact, and he misses a lot of work due to his PTSD symptoms, but he is working for a friend and so his friend is very tolerant. (The Veteran) is the Pro-shop manager, and he also teaches and coaches bowling.” At that time, the provider opined that, “(i)f he were not working for a friend, it is more likely than not, that the Veteran would be unable to work at all due to his fragile mental condition.” In October 2018, the Board considered the Veteran’s claim for a TDIU rating. At that time, the Board noted that the various lay statements, to include the Veteran’s, and a medical provider only addressed the Veteran’s service-connected acquired psychiatric disabilities. The Board remanded the claim to the AOJ in order to secure a medical opinion that considered all of the Veteran’s service-connected disabilities. In March 2019, correspondence from Vargas Vocational Consulting was associate with the claims file. Therein, the vocational consultant relayed that, “(b)ecause (the Veteran) would not be able to meet the basic requirements and standards for competitive employment, I do not believe he is employable in any capacity. He is unable to be a reliable and productive employee. Additionally, pain from his service-connected physical conditions even further limits his ability to work. Not only would he be unable to meet certain behavioral expectations, in his last job he was taking excessive breaks to sit because of pain in his knees and back. He also described difficultly lifting over 15 pounds. These limitations would further reduce the availability of jobs for him and combined with his mental health symptoms and limitations, would only add to the inability to work in any capacity. It is my professional opinion, it is more likely than not that due to a combination of his service-connected conditions, (the Veteran) has been unable to secure and follow substantially gainful employment since 2010. Since that time, he has only been able to maintain employment because it was in a sheltered or protected work environment. If not for the significant accommodations offered by his employers, who were close friends, he would not have been able to continue working.” In June 2019, the Veteran underwent a VA examination that considered the severity of the service-connected cervical spine disability. The Board notes that the VA examiner reported the following negative impact on the Veteran’s ability to function in the workplace: “(d)ecreased ability to bend or twist neck, difficulty with prolonged deskwork or driving for prolonged periods.” In June 2019, the Veteran underwent a VA examination that considered the severity of the service-connected lumbar spine disability. The Board notes that the VA examiner reported the following negative impact on the Veteran’s ability to function in the workplace: “(d)ecreased ability to sit, stand, or walk for prolonged periods. Decreased ability to bend, stoop, twist, or lift weight.” In June 2019, the Veteran underwent a VA examination that considered the severity of the service-connected peripheral nerve disabilities. The Board notes that the VA examiner did not report a functional impact from the Veteran’s service-connected peripheral nerve disabilities. In June 2019, the Veteran underwent a VA examination that considered the severity of the service-connected bilateral knee disabilities. The Board notes that the VA examiner reported the following negative impact on the Veteran’s ability to function in the workplace: “(d)ecreased ability to stand or walk for prolonged periods, difficulty with stairs or uneven ground. Decreased ability to bend, stoop, crouch, squat, or kneel.” In June 2019, the Veteran underwent a VA examination that considered the severity of the service-connected PTSD disability. The VA examiner noted that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other areas of functioning. The Board notes that the VA examiner reported the following negative impact on the Veteran’s interpersonal relatedness: “Veteran's mental health symptoms will likely affect his ability to work cooperatively and effectively with coworkers, supervisors, and the public. Veteran is currently socially withdrawn and prone to angry outbursts. He has significant mood disturbance. Veteran's suspiciousness and difficulties trusting others likely to interfere with interpersonal relationships.” In July 2020, a Mental Health Medication Management Note was generated at the Cumberland County VA Clinic. Therein, the VA provider noted that the Veteran had been unemployed since February 2020. The VA provider noted that, “Pt says he has been feeling better since he stopped working though feels mood is still ‘up and down.’” At that time, the Veteran relayed that, “his anxiety level is significantly decreased since he is no longer working . . ..” In September 2020, the Veteran underwent a VA examination that considered the severity of the service-connected hearing loss and tinnitus disabilities. The VA examiner noted that the Veteran’s service-connected hearing loss and tinnitus had a negative impact on his ability to function in the workplace. The Board again notes that the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Also, the Board notes that the ability to work sporadically is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore, 1 Vet. App. at 358. The record reflects that, during most of the claim period, the Veteran was an employee at a bowling alley. However, the evidence also reflects that the Veteran often had to leave work early due to the service-connected PTSD disability and that his employment was in a sheltered environment. The claims file reflects that the Veteran only maintained employment at the bowling alley because of accommodations that were made by his employer for the service-connected PTSD disability. After a well-reasoned review of the Veteran’s service-connected disabilities, the March 2019 vocational consultant relayed that, “it is more likely than not that due to a combination of his service-connected conditions, (the Veteran) has been unable to secure and follow substantially gainful employment since 2010.” Moreover, the June 2019 and September 2020 VA examination reports reveal that the Veteran’s non-psychiatric, service-connected disabilities also had a negative impact his ability to maintain substantially gainful employment. Ultimately, the Board finds that the evidence is relative equipoise as to whether the Veteran’s service-connected disabilities prevented substantially gainful employment during the claim period. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. This doctrine of reasonable doubt is applicable in this case because the preponderance of the evidence favors the Veteran’s claim for a TDIU rating. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). REASONS FOR REMAND Upon review of the record, the Board concludes that further procedural development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate procedure in developing his claim prior to final adjudication. 3. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD), major depression and alcohol abuse is remanded. In January 2017, the AOJ issued a rating decision. Therein, the AOJ relayed that the Veteran’s rating for the service-connected PTSD disability was reduced from 70 percent to 50 percent, effective November 12, 2016. In July 2017, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran disagreed with January 2017 rating decision and the evaluation assigned for the service-connected PTSD disability. In October 2018, the Board considered the Veteran’s claim for an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). The Board remanded the Veteran’s claim because a statement of the case (SOC) had not been issued. In August 2019, the AOJ issued a rating decision. Therein, the AOJ relayed that, “(a) clear and unmistakable error is found in the deletion of the evaluation of 50 percent for posttraumatic stress disorder, major depressive disorder; alcohol abuse disorder by Rating Decision dated February 12, 2018, when no decision was made or issued regarding this disability. Therefore, we are correcting this previous administrative error and reassigning the correct evaluation of 50 percent for posttraumatic stress disorder, major depressive disorder; alcohol abuse disorder effective November 12, 2016.” In August 2020, the AOJ issued a rating decision. Therein, the AOJ restored the Veteran’s rating for the service-connected PTSD, major depression and alcohol abuse from 50 percent to 70 percent disabling. The Board notes that the effective date for the Veteran’s 70 percent rating is April 18, 2014. On October 14, 2020, the AOJ issued a SOC. The AOJ did not address the Veteran’s claim for an increased rating for the service-connected PTSD disability. The Board notes that the Veteran’s PTSD disability has been rated at 70 percent disabling. However, the Board observes that the Veteran did not specify the disability rating sought in his July 2017 NOD. Because a higher schedular rating is available, and the Veteran is presumed to seek the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that strict compliance with remand directives is not an absolute necessity; however, substantial compliance is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The AOJ’s failure to issue a SOC for the Veteran’s increased rating claim for the service-connected PTSD disability renders the response non-compliant with the October 2018 Board remand directives. On remand, the AOJ must issue a SOC for the Veteran’s claim for an increased rating for the PTSD disability. Consequently, the matter is REMANDED to the AOJ for the following: 1. The AOJ must furnish the Veteran a SOC for his claim for a rating in excess of 70 percent for the service-connected PTSD disability. Only if the Veteran perfects a timely appeal as to this claim by filing a Substantive Appeal should this matter be returned to the Board for the purpose of appellate disposition. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.