Citation Nr: 21003228 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-54 473 DATE: January 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) since May 31, 2011 is granted. FINDING OF FACT Since May 31, 2011, the evidence shows that the Veteran’s service-connected PTSD precludes him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU from May 31, 2011 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1968 to February 1970. He filed an increased rating claim for his service-connected PTSD, which VA received on May 31, 2011. Evidence submitted with the Veteran’s increased rating claim indicates that he was unable to work due to his PTSD. When evidence of unemployability is presented during a claim for an increased rating, as in the Veteran’s case, a TDIU claim is inferred as part and parcel of the increased rating claim for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In addition, the record indicates that the Veteran became eligible for a schedular TDIU as of May 31, 2011, when his PTSD rating was increased from 30 percent to 70 percent. The record indicates that the Veteran is currently assigned a 100 percent rating for prostate cancer, which became effective February 3, 2017. However, he was notified in a November 2020 rating decision that the 100 percent rating is proposed to be reduced significantly, due to improvement in symptoms related to his prostate cancer. The Veteran has not yet submitted a response to that decision. In this regard, however, the Board notes that the rating reduction for this service-connected disability would decrease the Veteran’s overall evaluation from 100 percent to 90 percent. The record reflects that the Veteran requested a Board of Veterans’ Appeals (Board) hearing on his October 2017 VA Form 9 (substantive appeal). The Veteran, through his attorney, notified VA in written correspondence dated in November 2018, and again in December 2020, that he wishes to withdraw his request for a Board hearing. As such, the scheduled January 2021 hearing is considered withdrawn. 38 C.F.R. § 20.704(e). Entitlement to a TDIU The Veteran contends that his service-connected PTSD is the primary cause of his inability to obtain and maintain substantially gainful employment. Notably, on a September 2015 notice of disagreement form, he stated that he left his job in April 2011 at the age of 62 because he simply could not take the stress, people, tension, anxiety, inability to sleep, worry, anger, and paranoia that he would cause someone to get hurt after making a bad decision. As previously stated, a claim for a TDIU was inferred when he submitted a claim for an increased rating for PTSD on May 31, 2011, although he did not submit a formal application for TDIU until November 2014. The Board finds that a TDIU from May 31, 2011 is warranted. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As previously discussed, the Veteran is currently scheduled for a reduced rating for his prostate cancer, which would result in a combined overall rating of 90 percent. This includes a 70 percent rating for PTSD. He therefore satisfies the schedular requirement for consideration of a TDIU. 38 C.F.R. § 4.16(a). His other service-connected disabilities include prostate cancer; diabetes mellitus, type II; tinnitus; bilateral hearing loss; erectile dysfunction; and midline suprapubic scar, post radical prostatectomy. The question at issue 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). 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 nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the evidence shows that the Veteran graduated from high school, but he did not obtain any tertiary education or pursue any special training. See November 2014 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940). His reported work history, as noted on his VA Form 21-8940, shows that he worked as an outside plant supervisor with a telephone company from July 1973 to April 2011. In November 2014, VA received information from the Veteran’s last employer, showing that the Veteran retired from the company as of April 22, 2011. This information corroborates what the Veteran reported. Regarding whether the Veteran is unemployable due to his service-connected PTSD, consideration has been given to a May 2011 private treatment summary report from a counseling center. The report indicates that the Veteran started receiving treatment at that facility for his PTSD in May 2005. At the time the report was generated, the Veteran had attended 26 individual counseling sessions and 183 group sessions. The counselor opined that the Veteran probably stopped working “just in the nick of time” before getting into some serious trouble, both by his actions and for his emotional health and physical well-being. She explained that the Veteran has some severe symptoms of PTSD, which forced him to retire earlier than he wanted, before he physically hurt someone or got terminated. She also noted that the Veteran’s problems caused considerable trouble in his personal relationships as well as his ability to work. The counselor described the Veteran’s inability to sit still, having to leave his office at work to “go drive around” and “check stuff” sometimes. The Veteran reported that he experienced problems with his co-workers, partly due to his lack of tolerance and patience. He also reported that he became more and more anxious, which led to more conflicts. The counselor explained that PTSD symptoms such as sleep disturbance, which often caused him to sleep for just two hours on a work night, and panic episodes attributed to his problems at work. She noted that the Veteran described a lot of physical discomfort associated with the panic attacks, leading to “horrible heart palpitations, sweats, and the feeling that he needs to run” almost continuously. The counselor explained that the Veteran’s hair-trigger low frustration level and anger got to the point that it was dangerous for himself and others. The Veteran reportedly stated that he realized money did not matter as much as “staying alive” and not “losing it” at work, only to end up doing something “really crazy.” On a July 2011 VA examination report for PTSD, the examiner noted that the Veteran was having more and more trouble functioning in his employment. He explained that the Veteran would worry and experience anxiety on a regular basis. He noted that the Veteran would wake up at night and pace, not be able to go back to sleep, and worry about things at work. The examiner stated that the Veteran experienced more frequent panic attacks, occasional nightmares, and intrusive thoughts about service in Vietnam. The Veteran reported that he would pace at work when things bothered him and that his anxiety affected his concentration. The examiner described the effects of the Veteran’s PTSD on occupational and social functioning as being unable to work in the capacity of supervisor at the phone company due to worsening symptoms. He explained that the Veteran’s PTSD symptoms had certainly worsened since the last rating examination. The examiner noted that the Veteran’s anxiety and sleep disturbance became so profound that it was affecting his health. He indicated that the Veteran had also become more socially withdrawn. The Veteran’s mood and judgment were described as chronically impaired. The examiner concluded that the Veteran’s PTSD signs and symptoms result in deficiencies in the Veteran’s ability to work, family relations, judgment, thinking, and mood. On an April 2015 VA examination report for PTSD, although the examiner negatively opined that it is more likely than not that the severity of the Veteran’s PTSD symptoms did not render the Veteran unemployable, he noted that the Veteran had anger and irritability across most relationships. He also noted that the Veteran was reliable but chronically coping with discomfort and anxiety. The examiner opined that it is more likely than not that the Veteran’s symptoms interfere with motivation and drive, which would impact the ability to maintain task persistence and pace, the ability to arrive to work on time, and the ability to work a regular schedule without excessive absences. He further noted that the Veteran’s PTSD symptoms cause impairment in interpersonal relatedness, which would impact the ability to work cooperatively with co-workers, supervisors, and the public. The examiner reiterated that the symptoms are not severe enough to prevent the Veteran from working altogether. Regarding the issue of unemployability, an August 2017 VA examiner noted that the Veteran would have difficulty in highly social settings. He explained that the Veteran would need an environment that is stable, consistent, and minimally social. The examiner noted that he did not believe there are any significant issues with regard to cognition or memory function that would be especially compromising. He indicated that the Veteran maintains hygiene and can follow directions. He also noted that the Veteran had an appropriate stress level and would be able to report to work on time. However, the examiner stated that the Veteran would not work well when interacting with others and would need a task where he works by himself or with a limited social group. The Board has carefully reviewed and considered statements from the private counselor, VA examiners, the Veteran, and the Veteran’s attorney regarding the effects of the Veteran’s PTSD on his employability. However, the ultimate TDIU determination is the responsibility of a VA adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this regard, the Board finds that the positive and negative evidence regarding the Veteran’s TDIU claim is in relative equipoise. Thus, by resolving reasonable doubt in the Veteran’s favor, the Board concludes that his service-connected PTSD has rendered him unable to obtain and maintain substantially gainful employment, since May 31, 2011, when his educational and work background are taken into consideration. The claim for a TDIU is, therefore, granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.