Citation Nr: 21062224 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-39 960 DATE: October 6, 2021 ORDER Entitlement to total disability rating based on individual unemployability is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The medical and lay evidence shows that the Veteran's service-connected psychiatric disorder results in significant symptoms that preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to November 1971. This matter is on appeal from December 2015 rating decision. It is the Veteran's contention that his service-connected disabilities, which include PTSD, tinnitus, right ear hearing loss, diabetes mellitus, and a right knee disability rendered him unemployable and that he had to retire earlier. See VA Form 27-0820 dated February 2016. Based on his TDIU application, he holds only a high school degree and worked as an ammunition technician. He stated that he worked 40 hours a week, earning approximately $62,000 per year and last worked on August 13, 2013. He indicated that he became too disabled to work and stopped working completely on August 8, 2014. See December 2015 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In a subsequent TDIU application, the Veteran stated he stopped working on August 13, 2013. Although he helped his daughter with her cattle from 2013 to 2015, he was not employed or paid. See October 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). In 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) held that substantially gainful employment, in the TDIU context, contains economic and noneconomic components; the economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The CAVC also provided guidance as to the meaning of a veteran's ability to secure and follow such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. The Veteran is service connected for PTSD at 70 percent, tinnitus at 10 percent, a right knee strain with arthritis at 10 percent, diabetes mellitus at 10 percent, and right ear hearing loss at a noncompensable rating. He has a combined total disability rating of 80 percent. Therefore, the Veteran meets the schedular criteria for a TDIU. See 38 C.F.R. §§ 4.16 (a), 4.25, 4.26. The Veteran told his February 2017 VA examiner that he graduated with a high school degree. Subsequently, he took some technical training, one class of which focused on electrical training. However, since he had some knowledge on the subject already, he did not take additional classes. See February 2017 VA examination for PTSD. The Veteran stated that at the time he was employed at Lake City Ammunition, the company was taken over by another company. Once the atmosphere began to change, the work environment was more akin to a sweat shop. Due to the increased stress and the unhealthy atmosphere, he decided to retire. See May 2017 Deferred Rating. In support of his claim, the Veteran's wife asserted that his PTSD symptoms are significant. He often has sudden outbursts of anger and has even become violent. He has chronic sleep problems which affect his mood during the day. He is unable to attend any events with crowds or be around people. He previously lost his job because of his symptoms. See September 2017 Buddy/Lay Statement. The Veteran's April 2016 VA examination report regarding his right knee noted that the Veteran was previously employed as a mechanic and worked on 18 wheelers for 10 years. After that, he worked as at Sears Roebuck stocking bins with a forklift. His right knee disability causes some limitation on mobility, often requiring the use of a stick or a cane. He has difficulty with activities such as yard work, climbing up and down stairs. His April 2016 VA examination for PTSD found that the Veteran's condition results in occupational and social impairment with reduced reliability and productivity. It was reported that the Veteran worked at Lake City Ammunition for 10 years. He told the physician that he had significant conflicts at the ammunition plant because they were sacrificing safety and quality for profits. He was deemed a troublemaker and was fired as soon as they were able to. He denied conflicts with his peers. The previous VA evaluation noted that the Veteran worked at Sears for 25 years and worked in various departments including store stocker, and in the final 3 to 4 years, he worked in maintenance. During his interview, the Veteran stated that he had been helping his daughter with her cattle because she lived 3 hours away from the farm. However, he stated that he stopped working with cattle sometime this year since his daughter purchased additional equipment that allowed her to handle her cattle by herself. His daughter did not pay him for his work, but rather supplied him with beef. In his final remarks, the examiner noted that the Veteran reported previous problems with interpersonal work relationships in the past. He was able to sustain long term employment over the course of his career. At the evaluation, the Veteran was pleasant and cooperative to the examiner. It was noted that the Veteran may experience some problems with working closely with others in a work environment such as in teams or group of workers. The Veteran may likely require work in a low stress environment due to difficulties in managing stressful conditions. The Veteran reported problems with memory, which may impact his ability to learn new work processes, especially procedures that are complex or detailed in nature. The Veteran it's likely able to sustain adequate concentration to complete simple and routine work tasks. His PTSD symptoms may be more pronounced in physically demanding work environments as these may exacerbate both his physical and mental health symptoms. The Veteran told the examiner that 'as long as he is not stressed, he would be ok.' Based on his April 2016 VA examination for hearing loss and tinnitus, his hearing is essentially normal in the left ear, but he has high frequency loss in the right ear, which result in more difficulty for him to hear specific speech sounds. The Veteran will likely have trouble hearing in background noise or in situations with multiple talkers. The examiner noted that the Veteran would likely benefit from reasonable accommodations, such as environmental modification of workplace. He may also benefit from amplification and assistive devices. In his August 2016 VA examination for diabetes mellitus, the examiner found that the Veteran's diabetes-associated conditions and complications affect his ability to work because he requires close proximity to the bathroom as he reports polyuria. In a February 2017 VA examination report, the examiner noted that his overall service-connected psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and mood. The Veteran reported that he was not currently working and that he last worked approximately 3.5 years ago at Lake City Ammunition. He believed he was 'let go for bogus' reasons.' His employer claimed that they were cleaning house and began removing workers. The Veteran expressed an array of issues and described management issues and mistreatment of workers. The February 2017 VA examiner found that the Veteran psychiatric disorder results in depressed mood, anxiety, suspiciousness, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, illogical or irrelevant speech, impaired judgement, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or worklike setting, and impaired impulse control. In her final remarks, the examiner found that the overall effects of his PTSD adversely affect his occupational functioning which would interfere with the maintenance of gainful activities (both sedentary and physical tasks); sleep issues, irritability/anger trouble getting along with others, social isolation, flashbacks, hypervigilance, nightmares, avoidance of trauma related stimuli- and triggers, exaggerated startled response, heightened arousal. Each of these issues consistently affect the Veteran's ability to work a full-time job and complete tasks both individually and as part of a team. Furthermore, his condition inhibits his ability to get along with supervisors and coworkers. While the Veteran's other service-connected disabilities such as his hearing loss, tinnitus, and knee disability do not preclude him from obtaining gainful employment, the Board finds that the Veteran's service-connected psychiatric disorder warrants a TDIU. It is clear from the record that the Veteran has significant difficulties due to psychiatric symptoms. During the period on appeal, the Veteran has demonstrated worsening symptoms which contribute to his functional impairment. While the Veteran was able to keep his employment for a long period of time, the deterioration of his mental state and the added stress of a more stringent work environment caused him to end his employment. Given limited education and training, the Veteran is unlikely to be able to transfer his skills to another position. Based on the evidence, both medical and lay, the Veteran's psychiatric symptoms pose significant problems in a normal work setting. His depressed mood, anxiety, suspiciousness, affected speech, impaired judgement all causes significant difficulty in adapting to a stressful environment and inhibit his ability to function in a work or worklike setting. It was been shown that his poor impulse control, anger outburst, irritability, and hypervigilance impair his ability to get along with others or behave normally in a social situation. It is clear from the record that the Veteran has had difficulties with his supervisors and coworkers while he was employed. In light of the Veteran's occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that the Veteran's psychiatric disorder is sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level. (Continued on the next page) Accordingly, a TDIU is warranted. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.