Citation Nr: 21003434 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-44 633 DATE: January 21, 2021 ORDER OF VACATUR The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.1000. For the reasons discussed below, the August 19, 2020 Board decision is vacated. In June 2020, the Board received correspondence from the appellant requesting a 60-day extension in order to obtain new evidence and present additional argument. On August 19, 2020, without responding to the extension request, the Board issued a decision denying entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. In November 2020, the appellant submitted a motion to vacate the decision on the basis that the appellant had been denied due process. As the failure to respond to the June 2020 extension request denied the appellant due process of law, the Board will grant this motion. Accordingly, the August 19, 2020 Board decision is vacated. ORDER Entitlement to a TDIU effective September 10, 2014, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether Veteran’s service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation for the entire period on appeal. CONCLUSION OF LAW The criteria for a TDIU effective September 10, 2014, have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1954 to November 1982. He died in January 2019. The appellant is his surviving spouse, and has been recognized as the substituted claimant in the appeal In November 2018, the Board denied the Veteran’s claim for a TDIU. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In September 2019, a Joint Motion for Remand (JMR) was granted vacating the Board’s decision and remanding the claim to the Board for re-adjudication in compliance with directives specified. In August 2020, the Board again denied the appeal. As discussed above, in the decision herein the Board has vacated the August 2020 denial and will consider again the issue of entitlement to a TDIU. Entitlement to a TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran filed a claim for a TDIU which was received on September 10, 2014. During this period, the Veteran was in receipt of a 70 percent rating for posttraumatic stress disorder (PTSD); a 20 percent rating for duodenal ulcer; a 10 percent rating for diabetes mellitus prior to March 6, 2017 and 20 percent thereafter; and noncompensable ratings for bilateral hearing loss and right foot tinea pedis. As the combined disability evaluation during this period was 80 percent with PTSD in excess of 40 percent, the Veteran met the minimum schedular requirements for TDIU. To establish entitlement to a TDIU rating, there must be impairment severe enough that the Veteran cannot obtain and maintain a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In other words, for a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant’s case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, because a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, the question in a TDIU claim is whether a veteran is capable of performing the physical and mental acts required by employment that is consistent with the veteran’s education and experience, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion but not to age or to the impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. 361. In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Marginal employment shall not be considered substantially gainful employment. See 38 C.F.R. § 4.16. TDIU consideration requires contemplation of factors such as the veteran’s level of education, special training, and previous work experience, but not age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The evidence in this case clearly shows that during the period on appeal, the Veteran was totally occupationally disabled as a result of psychological and cognitive impairments and there is general agreement by both VA and private examiners in this regard: in June 2014, a VA examiner indicated that the Veteran displayed difficulty in adapting to stressful circumstances, including work or a worklike setting; in July 2014, the Veteran’s private physician stated that the Veteran was mentally unable to obtain or maintain gainful employment; in December 2014, a VA psychologist concluded that the Veteran was totally occupationally and socially impaired as a result of his mental diagnoses and in a December 2014 addendum, a VA nurse practitioner agreed with that assessment; in January 2019, a private doctor concluded that the Veteran was not capable of gainful employment due to his memory loss; and in correspondence received in August 2020, a private psychologist found that the Veteran’s cognitive problems resulted in total occupational impairment. The dispositive issue here is whether such impairment was due to the Veteran’s service-connected PTSD or to his nonservice-connected dementia. The June 2014 VA examiner indicated the Veteran’s PTSD resulted in mild or transient symptoms which resulted in decreased work efficiency only during periods of stress. Although the examiner acknowledged that the Veteran also suffered from dementia, she checked “no” regarding whether more than one mental disorder had been diagnosed, thereby suggesting that PTSD was a separate and distinct disorder. In addition, both the December 2014 VA psychologist and VA nurse concluded that it was possible to differentiate the symptoms attributable to PTSD and dementia and that while dementia resulted in total impairment, service-connected PTSD only caused occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Although the VA psychologist and VA nurse both agreed that the Veteran’s widespread cognitive impairment was exclusively due to dementia, no rationale was offered in support of this conclusion. The July 2014 private physician, however, who had been treating the Veteran for his mental health concerns, concluded that the Veteran’s PTSD rendered him unable to obtain or maintain gainful employment. Similarly, the August 2020 private psychologist found that the Veteran’s cognitive problems resulted in total occupational impairment. She reasoned that PTSD is known to be associated with cognitive impairment and that since PTSD and dementia symptom presentation are intertwined, it is not possible to differentiate the PTSD symptoms from the dementia symptoms. In support, she cited, among other things, research from the National Center for PTSD, stating that there is a well-established correlation between cognitive dysfunction and PTSD among older adults. Her opinion was offered following a review of the entire claims file as well as an interview with the Veteran’s spouse. The January 2019 private doctor concluded that the Veteran was not capable of gainful employment due to his memory loss but did not specify whether this was the result of PTSD, dementia, or both. Based on the above, the Board finds that the evidence is at least evenly balanced as to whether Veteran’s service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation for the entire period on appeal. There is no question as to whether the Veteran was totally occupationally impaired during this period. Although the December 2014 VA examiners concluded that symptoms attributable to PTSD could be differentiated from those resulting from nonservice-connected dementia, no explanation was provided for this conclusion. The August 2020 psychologist explained, however, with reference to pertinent medical research, that because cognitive impairment is associated with PTSD, it was not medically possible to differentiate between the cognitive impairment due to PTSD from that due to dementia. Because this opinion was offered following a review of the claims file, interview with the Veteran’s spouse, and is supported by a rationale consistent with the evidence of record and based on current medical research, the Board finds it is entitled to at least as much weight, if not more, than the opinions discussed above which conclude that service-connected PTSD did not result in cognitive dysfunction. Although the July 2014 private physician did not provide a rationale for the conclusion that PTSD alone resulted in total occupational impairment, because the physician had been treating the Veteran for PTSD, the conclusion nonetheless bolsters the August 2020 opinion. The Court has held that when the Board cannot differentiate between the effects of a service-connected and nonservice-connected disorder, it must attribute the effects to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, the Board finds that during the entire period on appeal, the Veteran’s service-connected PTSD resulted in total occupational impairment. As such entitlement to a TDIU is warranted. The appeal is granted. C. R. KAMMEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Schlickenmaier, 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.