Citation Nr: 21004402 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 12-02 671 DATE: January 27, 2021 ORDER A total disability rating based on unemployability due to service-connected disability (TDIU) prior to December 3, 2011 is granted, subject to the criteria for governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty from May 1966 to April 1969, to include service in Vietnam. He is in receipt of the Purple Heart and Combat Action Ribbon. He has been 100 percent disabled based on unemployability since December 2011 and rated at 100 percent on a schedular basis since July 2017. 2. The Veteran’s claim for a TDIU was raised as part and parcel of a claim for a higher rating for posttraumatic stress disorder (PTSD), which was received on April 11, 2007. 3. As of April 11, 2007, the Veteran’s service-connected disabilities included PTSD at 70 percent disabling and residuals of a fragment wound to the left buttock at zero percent disabling. 4. The Veteran was last gainfully employed in June 2008 and his service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation as of July 1, 2008. CONCLUSION OF LAW The criteria for an award of a TDIU have been met since July 1, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION When the case was most recently before the Board of Veterans’ Appeals (Board) in November 2019, the Board granted TDIU effective December 3, 2011. TDIU was denied prior to that date. The Veteran appealed the denial of TDIU prior to December 3, 2011 to the Veterans Claims Court (Court). In July 2020 the Court Clerk granted a Joint Motion for Partial Remand (JMPR) which vacated the portion of the November 2019 Board decision that denied a TDIU prior to December 3, 2011, and remanded the matter back to the Board for action in compliance with the JMPR. Turning to the relevant laws and regulations, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the schedular rating is less than total, 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, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the time period prior to December 3, 2011, the Veteran was service-connected for PTSD, rated at 70 percent from April 11, 2007, and residuals of a fragment wound to the left buttock, evaluated as zero percent disabling prior to April 11, 2007. Thus, he met the requirements for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) from April 11, 2007. Even so, to grant TDIU it must be found that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Consequently, the Board must determine whether the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment prior to December 3, 2011 (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As previously noted, inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. In a November 2020 written statement, the Veteran contended that he was last gainfully employed in June 2008 and a TDIU is warranted as of July 1, 2018 because he became unemployable due to his PTSD as of that date. He reported that he last worked (for over 30 years) as a truck driver. His VA Forms 21-8940 indicated that he went to college for a few years but did not finish or earn a degree. VA treatment records noted that the Veteran was initially referred for psychiatric treatment/PTSD treatment in May 2007. At that time, it was noted that he reported his mind raced back and forth and he could not focus. He indicated that he was a truck driver and then he stopped working for no reason. The Veteran expressed that he did not know where his future was going and sometimes his mind would go totally blank and he would have no thoughts. He stated that as a truck driver, he must be completely focused. He reported being very fearful because he was afraid that he would run over a family because he was unable to focus. A September 2008 VA treatment record indicated that the Veteran would get five to six hours of sleep on a good night. He reported that his symptoms kept getting worse and his head was so “screwed up” that if he got back in his truck, he might kill someone. He reported that he was working until weeks earlier when he suffered a hip injury while on the job. Since then he had been at home and was at a loss. VA treatment records noted that the Veteran was hospitalized for four days in March 2010 for depression and suicidal ideation. A March 2010 VA treatment record noted that he reported worsening of his PTSD symptoms with recent suicidal ideation/plan. He admitted to auditory hallucinations. He also reported 15-20 lb. unintentional weight loss over the past year. He was admitted for psychiatric treatment. A March 2010 VA treatment record indicated that his wife reported that he was able to tolerate whatever anguish he went through in Vietnam until roughly one and a half years ago. Since that time, his patience was short, he was irritable, and he was unable to sleep. A May 2010 letter from the Veteran’s treating VA psychiatrist and social worker stated that due to PTSD symptoms and treatment, he was considered totally disabled with minimal ability for sustained activity or functioning and severely impaired resources for coping with stress. It was further noted that he was incapable of seeking or maintaining employment. The letter described his extensive symptomatology and outlined his treatment. Subsequent VA treatment records dated in June 2010, August 2010 and March 2011 indicated that his sleep was improving and his daytime grogginess was decreasing. A June 2011 VA examination report noted that after service the Veteran had trouble maintaining work (he had worked at a bank and other jobs) due to irritability; however, he found work as a truck driver and drove a truck for more than 25 years. He last worked in 2008. He indicated that he had an accident where he fell out of the truck and injured his back. He has not driven since then. It was noted that he was retired, but not by choice. It was also noted that he had been in psychiatric treatment since 2007. It was indicated that he would sleep two to three hours at night and two hours during the day. He reported that when he did work as a truck driver, he mainly worked alone, which he liked. He said he did not miss work, as he had some problems due to his irritability and temper; however, he also reported that he enjoyed truck driving. The examiner opined that the Veteran’s PTSD resulted in mild to moderate occupational impairment, noting that the Veteran worked as a truck driver without significant problems and working alone likely helped him maintain this job. The examiner also indicated that the Veteran retired due to his back injury, not related to PTSD. However, the examiner stated that there would likely be impairment if he was working due to sleep problems and irritability. Overall, the examiner concluded that some of his symptoms had improved and some had gotten worse. His nightmares had decreased but he had been less apt to socialize. He was also admitted to the inpatient unit in March 2010 for depression and suicidal ideation. A July 2019 private vocational assessment indicated that the Veteran was last gainfully employed in June 2008 as a truck driver. At that time, he became easily distracted, lacked motivation, experienced flashbacks, experienced daytime fatigue/fell asleep while driving, and experienced racing thoughts to the point that he would have to pull over to regain his composure. The private vocational rehabilitation consultant concluded, after review of the Veteran’s medical record and telephone interview with the Veteran, that he has been unable to secure and follow substantially gainful employment since at least June 2008 to the present. Although the June 2011 VA examiner opined that the Veteran’s PTSD resulted in only mild to moderate occupational impairment, and there are VA opinions outside the appeal period which conclude that the Veteran was not unemployable, the Board affords more probative value to his longstanding VA treating psychiatrist and social worker who authored the May 2010 letter in favor of the claim. Further, the July 2019 private vocational assessment weighs in favor of the claim. These opinions are based upon thorough examination of/interview with the Veteran and review of his treatment records, and the VA treatment records outlined above generally support the medical opinions in favor of the claim. Additionally, while the Veteran did not specifically report that he was unemployable due to his PTSD in any VA or Social Security Administration (SSA) disability benefits claim prior to December 3, 2011, there is essentially no medical opinion weighing against the claim for TDIU prior to December 3, 2011 and the VA treatment record evidence addressed above supports a finding of unemployability during this time period. Further, while the record reflects that the Veteran briefly engaged in contract employment with Uber in 2015 and 2016, the evidence of record also substantiates that this was not full time or gainful employment. After review, the evidence is at least in equipoise with regard to whether the Veteran was substantially and gainfully employable due to his service-connected PTSD for the time period from July 1, 2008. (As noted above, in his November 2020 written statement, he requested that TDIU be awarded effective July 1, 2008, because he was last gainfully employed in June 2008.) Therefore, in giving him the benefit of the doubt, entitlement to TDIU is granted for the time period from July 1, 2008. The appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.