Citation Nr: 21061297 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-54 653 DATE: October 1, 2021 ORDER From September 7, 2007 to August 22, 2013, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. From September 7, 2007 to August 22, 2013, the Veteran was service connected for posttraumatic stress disorder with major depressive disorder at 50 percent disabling. 2. From September 7, 2007 to August 22, 2013, the Veteran was unable to follow (maintain) substantially gainful employment as a result of the service-connected disability. CONCLUSION OF LAW Giving the Veteran the benefit of the doubt, from September 7, 2007 to August 22, 2013, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from March 1977 to August 1978. The instant matter is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied entitlement to a TDIU from September 7, 2007 to August 22, 2013. The instant matter has been before the Board of Veterans' Appeals (Board) previously in conjunction with a claim for increased ratings for PTSD with major depressive disorder and the Board remanded the issue of TDIU from September 7, 2007 to August 22, 2013 to the RO for a referral to the Director of Compensation and Pension Service for adjudication under 38 C.F.R. § 4.16(b). As the necessary development and adjudication have occurred on remand, the matter is ripe for adjudication by the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran participated in a February 2021 Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. TDIU Legal Authority 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. 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. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2). 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). 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. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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 totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical question, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). From September 7, 2007 to August 22, 2013, a TDIU is Granted. The Veteran is already in receipt of a TDIU from August 22, 2013 onward and requested at the Board hearing to have the Board consider the appropriateness of a TDIU for the entire rating period on appeal from September 7, 2007. The Veteran last worked in 2006, so the questions of substantially gainful employment are not an issue. From September 7, 2007 to August 22, 2013, the sole service-connected disability was for PTSD with major depressive disorder at 50 percent disabling. The combined ratings criteria of 38 C.F.R. § 4.16(a) for TDIU eligibility were not met, so the matter was remanded to the RO for a referral to the Director of Compensation and Pension Service. Although the RO recommended that a TDIU be granted, the Director issued an advisory opinion that it should not be, stating that, although it was conceded that the service-connected condition does cause functional limitations, the preponderance of the evidence does not show that the Veteran was unable to obtain or maintain gainful employment due solely to the service-connected PTSD with major depressive disorder. See June 2021 Supplemental Statement of the Case. After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the service-connected disability precluded the Veteran from maintaining substantially gainful employment for the period from September 7, 2007 to August 22, 2013. There are a variety of potentially relevant factors in order to determine whether a veteran can secure (obtain) and follow (maintain) a substantially gainful occupation under 38 C.F.R. § 4.16: (1) the veteran's history, education, skill, and training, (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue, including limitations in lifting, bending, sitting, and other similar activities, and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including difficulty concerning memory, concentration, ability to adapt to change, ability to handle work place stress, ability to get along with coworkers, and ability to demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Concerning the Veteran's history, education, skill, and training, the Veteran completed approximately two years of college, attending somewhat sporadically, and received certification as a cosmetologist and as an LPN. See TDIU Claim Form (VA Form 21-8940); Social Security Administration (SSA) Records from Dr. L's Psychological Interview and Mental Status Exam dated August 6, 2007. The Veteran has worked approximately 23 years as an LPN. Most recently, she worked as an LPN at a VA hospital from March 1991 to October 1995, as a phlebotomist at the VA hospital from October 1995 to May 2000, and as a medical support assistant at the VA hospital from May 2000 to May 2006. She testified at the February 2021 hearing that she had a psychological meltdown at work in May 2006 and has been unemployed ever since. She receives SSA payments with the primary diagnosis of an affective or mood disorders and a secondary diagnosis as an anxiety disorder. See SSA records Disability Report. Overall, she has training relevant to a particular field that placed psychological demands on her that she eventually became unable to handle. Concerning physical ability, the Veteran's physical ability is not the focus of the claim for TDIU. The SSA decision did note two physical conditionsdegenerative joint disease of the shoulders and chronic gastroesophageal reflux disease; however, the bulk of the records focus on the psychiatric analysis. VA treatment records also reflect migraines, hypothyroidism, chronic low back pain, and plantar fascial fibromatosis. These non-service-connected conditions do not appear to be substantial contributing factors to the Veteran's unemployability and are also not considered as part of the analysis for TDIU eligibility. 38 C.F.R. §§ 3.341(a), 4.19. The focus of the case surrounds the degree to which the Veteran's service-connected PTSD with major depressive disorder makes her unable to maintain substantially gainful employment. Although not determinative, it is worth noting that the SSA payments are largely based on the service-connected psychological disabilities. After reviewing all the evidence, some of which is discussed herein, the SSA administrative law judge issued a fully favorable decision finding the Veteran disabled as of May 16, 2006. An October 2007 Mental Residual Functional Capacity Assessment found that the Veteran was moderately limited in the ability to maintain attention and concentration for extended periods, in the ability to perform activities within a structure, to maintain regular attendance, to be punctual within customary tolerances, and in the ability to complete a normal work-day and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. All of these aspects of employment are components that are necessary for skilled professions, such as the one in which the Veteran is trained. She could not serve in a medical profession if she could not handle a consistent pace and concentrate on tasks. The Assessment found that the Veteran was moderately limited in the ability to interact appropriately with the general public and in the ability to accept instructions and respond appropriately to criticism from supervisors. She was found to be moderately limited in an ability to respond appropriately to changes in the work setting. She would also sometimes have difficulty relating effectively to the public. The Assessment suggested that the Veteran could adequately relate to coworkers and supervisors in work setting that do not have heavy social demands, but that is not the nature of a medical profession job (LPN) for which she had been trained. In a Psychological Interview and Mental Status Exam from August 2007, the psychologist found that the Veteran had a lack of motivation, no energy, and stays tired all the time; she has difficulty with handling stress and has been suffering from depression for quite some time. In an Adult Function Report completed in May 2007, the Veteran reported that she struggled with concentration and because of concentration difficulties and depression she could become easily irritated and moody. She reported that she had sleep difficulties, that she had been late in paying bills, that she did not participate in social activities much, that she needed assistance with instructions, and that she sometimes had anxiety attacks. The mental health symptomatology that impacts her occupational functioning persists throughout the time on appeal. In a June 2013 VA Treatment Record, symptoms included low self-confidence, inadequacy, shame, excessive worry, isolation, distrust, fear of emotional and physical intimacy, sadness, exhaustion, avoidance of trauma triggers, intrusive memories, anxiety and revulsive responses to certain sensory triggers, negative and self-critical self-perception, self-doubt, anhedonia, low motivation, social withdrawal, sleep interruption and nightmares, and excessive worry over safety. This cluster of depressive and trauma symptoms suggests that the Veteran's occupational functioning has not improved since the 2007 SSA records. The degree of disability is also reflected in the fact that the Veteran had a TDIU granted as of August 22, 2013, which is when the combined ratings criteria for 38 C.F.R. § 4.16(a) were met. After a review of all the evidence, the Board finds that the evidence is at least in equipoise that the service-connected mental health symptomatology causes total occupational impairment and warrants a TDIU from September 7, 2007 to August 22, 2013. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU from September 7, 2007 to August 22, 2013 have been met. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.