Citation Nr: 21003942 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-55 326 DATE: January 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective April 10, 2015. FINDING OF FACT The Veteran’s service-connected left eye traumatic cataract and depression associated therewith preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history, and training. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating, effective April 10, 2015, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to January 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Portland, Oregon. By way of background, the RO inferred a TDIU claim from the Veteran’s service connection claim for depression filed April 10, 2015, following which the TDIU claim was deferred for additional development in a June 2015 rating decision. Subsequently, the Veteran filed an application for TDIU in June 2015. In October 2015, the RO denied a TDIU rating from which the Veteran timely appealed requesting a hearing before the Board. Said hearing was held in December 2020, a transcript of which has been associated with the claims file and reviewed. 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 Veteran 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). Entitlement to a TDIU rating is granted, effective April 10, 2015. Again, the TDIU claim was inferred from a depression claim filed April 10, 2015. Thus, the Board will consider the period on appeal from April 10, 2015. The Veteran contends all his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. The Board finds a TDIU rating is warranted, effective April 10, 2015. 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). 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 or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. In this case, the Veteran is service connected for left eye traumatic cataract, rated at 30 percent disabling, effective April 7, 2014, and depression associated with the left eye traumatic cataract, rated at 70 percent disabling, effective April 10, 2015. Thus, the Veteran meets the schedular criteria for TDIU as of April 10, 2015. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Turning to the relevant evidence of record, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability in June 2015 wherein he reported being self-employed in construction from 1980 through 2011 when he stopped working. See June 2015 VA Form 21-8940. He stated that he worked in construction and cut wood throughout his life following separation. Id. He reported never having a full-time job working for someone else. Id. The Veteran’s SSA disability benefits application reflects a report of employment as a wood cutter from 2008 through 2011. See SSA disability benefits application. Previously, the Veteran noted he worked as a handy man, carpenter, driver, notary public, and drug mentor. Id. Specifically related to his service-connected conditions, he said that he does not always handle stress well but is able to handle changes in routine “fairly well.” Id. The Veteran states that his depression creates gross impairment in thinking, mood, and ability to communicate. See October 2017 VA Form 9. He expressed experiencing suicidal ideation intermittently. Id. He stated that he is irritable, has difficulty adapting to stressful situations, and is not reliable. Id. He noted his left eye visual acuity and depth perception hampers his ability to work. Id. He also reports he is unable to follow through or complete tasks on a daily basis. See October 2016 Notice of Disagreement (NOD). In April 2015, vision was noted to be a barrier for some activities. See April 2015 VA treatment records. The Veteran has stated that he is easily frustrated when communicating with others because “they do not seem to understand what I am trying to convey to them,” which manifest within the Veteran’s treatment records. See October 2016 NOD. More specifically, in August 2017, the Veteran was noted to be confrontational and argumentative throughout a phone call which ended with the Veteran hanging up before the conversation was completed. See August 2017 VA treatment records. During the hearing, the Veteran again noted he stopped working sometime in 2011. He explained that his wood cutting job was very informal and seasonal. See December 2020 hearing transcript, p. 4-5. He said that he creates stained glass, but it does not provide an income. Id. He expressed an inability to make important phone calls providing examples where he was unable to receive payment for jobs because he could not make the phone call or when he was trying to “save his house,” he could not pick up the phone to call about it. Id. He described plans to make phone calls about his stained-glass art for a month, but said it never happened. Id. Difficulty making phone calls was expressed in relation to work and “anything else” the Veteran tries to do in his life. Id. The Veteran expressed taking hours to recover from the anger he experiences following a phone call where he was unable to achieve what he wanted. Id. Regarding education and training, the Veteran completed high school with a quarter of college. Id. at 9. He has experience in construction but never completed formal training or technical school. Id. The Veteran was afforded a VA examination in May 2015 regarding his service connection claim for depression. The examiner noted that the Veteran has a depressed mood and has been suicidal in the past. Id. He was noted to be amotivational, has anhedonia, low self-worth, and has the “vegetative” symptoms of depression. Id. The examiner found occupational and social impairment with reduced reliability and productivity. Id. During the examination, the Veteran reported his employment history included carpentry following separation from service. Id. He stated that he stopped working, in-part, due to his eyesight noting that his left eye could not focus, and his depth perception was off. Id. He described sensitivity to light in the left eye. Id. He stated that this impacted his ability to build walls. Id. Upon evaluation, the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened effect, impaired judgment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. Id. Problems getting along with others was noted. Id. Another VA examination occurred in September 2015 during which the examiner noted that the Veteran experiences irritability or outbursts of anger that alienates others and creates fear which abruptly removes the Veteran from an interaction with another person. See September 2015 VA examination. The Veteran was noted to experience apathy and anhedonia which decreases the desire to connect with others as well as detachment or estrangement, which reduces the natural interest in relating to other people. Id. He also has restricted range of affect which impairs the ability to empathize and appropriately express emotion. Id. He has psychiatric signs and symptoms that abruptly remove the Veteran from an interaction with another and causes embarrassment. Id. The examiner also noted the Veteran feels worthlessness which causes him to withdraw and avoid social interaction with sensitivity to rejection. Id. The examiner found that the Veteran’s symptoms impair his ability to work cooperatively and effectively with co-workers and supervisors to a severe extent. Id. The examiner explained that the Veteran fears rejection and is not comfortable with a lot of people. Id. If a co-worker or supervisor were to provide constructive criticism, or there was a disagreement, he would feel rejected, unaccepted, and very vulnerable. Id. The examiner noted the Veteran has difficulty concentrating, experiencing negative and sad emotions that interfere with cognitive ability and affects processing speed, intense psychological distress at times, physiological reactivity (psychomotor retardation/restless), and negative thinking with a low self-worth that interferes with work assimilation/ability. Id. The examiner found that the Veteran’s symptoms impair his ability to retain instructions to a moderate extent and impact his ability to communicate effectively in writing to a moderate extent. Id. Said symptoms also impair the Veteran’s ability to solve technical or mechanical problems to a moderate extent. Id. The examiner explained that having depression can interfere with attention and concentration directly or indirectly; it can impede the encoding of information into memory; and slow down problem-solving and processing speed. Id. The examiner found the Veteran’s mental examination was fairly normal, in terms of these skills but the issues do worsen when he is experiencing an exacerbation of his depression. Id. She noted chronic problems with sleep as part of his depression which can also certainly impair the aforementioned types of cognitive functioning. Id. The Veteran’s symptoms of apathy and anhedonia, which dampen enthusiasm and decrease motivation; panic attacks, which decrease energy and distract the Veteran from his objectives; and fatigue, which impacts motivation and drive, all impair his ability to maintain task persistence and pace to a severe extent. Id. Additionally, said symptoms impair his ability to arrive to work on time and work a regular schedule with excessive absences to a severe extent. Id. The examiner stated that the symptoms are chronic and there would be a need for absence or flexible work hours allowing him to arrive late or leave early. Id. At the outset, the Board notes the Veteran’s treatment records and SSA disability records show numerous other medical problems, to include diabetes mellitus, neuropathies, carpel tunnel, high blood pressure, thyroid problems, and arthritis. While consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, the Board cannot consider a claimant’s impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). As such, this decision is limited to the symptoms of the Veteran’s left eye traumatic cataract and depression associated therewith in relation to his TDIU claim. The Board also notes the Veteran and his representative referenced outstanding VA treatment records but declined to keep the record open following the hearing to obtain said records. The Board finds obtaining said records unnecessary as the claim is being granted. With regard to the economic component of Ray, the Veteran competently and credibly reported that he stopped working in 2011. This timeline is corroborated by numerous references within the record. The Veteran reported being self-employed following separation from service in construction as a carpenter and wood cutter. These assertions were also stated within the Veteran’s SSA disability benefits application and throughout numerous medical records. The record also shows that the Veteran graduated from high school with a quarter of college education. The Veteran did not complete formal training or attend a vocational school. He does have multiple years of experience in construction. The Board has considered the physical ability factors of Ray including lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. 58. In this case, the only physical ability factor that relates to the Veteran’s service-connected conditions is visual. Specifically, the Veteran’s left eye vision was noted to be a barrier for some activities. The Veteran competently and credibly stated that his left eye condition prevents him from visually focusing and has impacted his depth perception. He reported difficulties in completing his construction jobs due to his left eye symptoms. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. The medical and lay evidence of record overwhelmingly indicates that the Veteran experiences a significant impact on nearly all of the noted mental ability factors in Ray. Both the May 2015 and September 2015 VA examiners noted the Veteran’s depression has caused problems with memory including memory loss and problems with encoding information into memory. Additionally, the September 2015 VA examiner found that the Veteran has problems concentrating due to his depression symptoms. While the Veteran stated that he handles change fairly well, he said that he does not always handle stress well. The Veteran reported difficulty handling workplace stress including struggling to make phone calls in relation to past due payments from previous clients. Additionally, the September 2015 VA examiner stated that the Veteran’s symptoms including difficulty concentrating, intense psychological distress at times, physiological reactivity (psychomotor retardation/restless), and negative thinking all interfere with the Veteran’s work ability and assimilation. Regarding getting along with others, the September 2015 VA examiner stated that the Veteran experiences irritability and outbursts of anger as well as apathy, anhedonia, restricted range of affect, and detachment or estrangement. The examiner stated that these symptoms impair the Veteran’s ability to interact with others including receiving criticism or feedback in the workplace. Of great significance was the examiner’s opinion that said symptoms impair the Veteran’s ability to work cooperatively and effectively with co-workers and supervisors to a severe extent. This finding was corroborated by the medical evidence of record including the May 2015 VA examiner who stated that the Veteran’s symptoms caused difficulty in establishing and maintaining effective work relationships. The September 2015 VA examiner also found that the Veteran’s symptoms severely impact his reliability and productivity at work. Specifically, the examiner stated that the Veteran’s apathy, anhedonia, panic attacks, and fatigue all impair his ability to maintain task persistence and pace to a severe extent. Said symptoms also impair his ability to arrive to work on time and work a regular schedule without excessive absence to a severe extent. The examiner explained that said symptoms are chronic. In regard to reliability, while the examiner noted the Veteran could find employment with flexible work hours allowing him to arrive late or leave early, the Board finds the totality of the Veteran’s symptoms relating to his service-connected conditions renders him unable to obtain or maintain substantially gainful employment. The Board affords great probative value to the medical and lay evidence summarized above competently and credibly documenting the Veteran’s functional impairments due to his service-connected symptoms on a consistent basis. The Veteran consistently reported the degree and frequency of his observable, service-connected symptoms and consequent impairments. Upon review of the medical and lay evidence of record, the Board resolves all doubt in the Veteran’s favor, finding that he was unable to secure or follow substantially gainful employment effective April 10, 2015. The record lacks evidence of worsening in the year prior to this date. This is in consideration of the economic factors including his training, experience and education as well as the non-economic factors including the mental and physical impairments his service-connected conditions have on his ability to secure and follow substantially gainful employment under Ray. Accordingly, entitlement to a TDIU rating by reason of the Veteran’s service-connected disabilities is warranted, effective April 10, 2015. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.