Citation Nr: 21062392 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 19-27 190 DATE: October 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing monetary awards. REMANDED Entitlement to a disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran's PTSD has prevented him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38U.S.C. §1155; 5107(b); 38C.F.R. §§3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 38C.F.R. §§3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from June 1966 to April 1968, and in the United States Air Force from April 1968 to April 1988. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) October 2018 rating decision of the Agency of Original Jurisdiction (AOJ). In March 2021 the Veteran appeared before the undersigned Veterans Law Judge at a virtual Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. 1. Entitlement to a TDIU Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38C.F.R. §3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38C.F.R. §4.16 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38U.S.C. §5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38C.F.R. §§3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. 38C.F.R. §§4.1, 4.15; Van Hoose, 4Vet. App.at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran has the following conditions that have been determined to be service connected: PTSD, 70 percent disabling as of March 2014; tinnitus, 10 percent disabling; and bilateral hearing loss, 0 percent disabling. His combined disability evaluation for all service-connected disabilities is 70 percent effective from March 31, 2014. He filed the current claim for entitlement to a TDIU in July 2018. As such, the Veteran meets the schedular requirement for a TDIU throughout the appellate period. While the Board understands that the Veteran's tinnitus and bilateral hearing loss cause him day-to-day difficulty, as discussed further below, the Veteran's PTSD on its own is severe enough to warrant entitlement to a TDIU. The majority, if not all, of the Veteran's evidence in support of his claim for a TDIU discuss only the impact of his PTSD on his ability to obtain and maintain substantially gainful employment. The Veteran has presented no probative evidence as to the effects his non-PTSD conditions have on his ability to work. Therefore, the Board will not provide a detailed discussion relating to the impact of his service-connected disabilities other than PTSD. At his March 2021 hearing, the Veteran stated that he stopped working at a local golf course sometime in 2014. He had been employed there since his retirement from the United States Postal Service (USPS) in 2007. An August 2018 VA Form 21-4192 reports that the Veteran was working part-time (approximately 20 hours per week) at the golf course in maintenance at that time, earning almost $3,000 between September 2017 and December 2017 and approximately $6,800 between January 2018 and August 2018. However, this was a temporary return to work, as the Veteran stated that he lasted less than a year, and had not been employed either part- or full-time since then. A May 2011 VA psychiatric examination showed that, while the Veteran was working at the time, he had difficulty working with or around other people. The Veteran's job at the time accommodated his desire to not "deal with people," and that he preferred to isolate himself. In a July 2018 VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran stated that he had to quit his job as he "couldn't deal with the day to day dealing with people." The Veteran reported that he had last worked full-time in February 2014 in maintenance. He noted that he had previously been a USPS supervisor in 2007. The Veteran also reported that he had completed two years of college. In July 2019, the Veteran submitted a Statement in Support of Claim further addressing the reason as to why he attempted to return to work in 2018. The Veteran stated that he had to work out of "necessity," but due to his inability to "work with others or use any machinery" he was "unable to work full time." In September 2019 the Veteran submitted another Statement in Support of Claim, wherein he claimed that his part-time work was necessary to support himself and his wife. However, his PTSD resulted in "frequent" panic attacks that "occur without predictability," which further compounded his inability to use machinery as well as work with other people. At his March 2021 Board hearing, the Veteran stated that once he retired from the Postal Service his PTSD worsened, and "all hell broke loose." It reached a point where he "couldn't work, ... couldn't be around people ... couldn't deal with my job." The Veteran's shortened attention span was such that he was unable to concentrate or "deal with the intensity" that came with working. As an example, the Veteran explained that "they took the machines away from me" after he damaged some equipment and nearly hurt himself on the job. At that point, the Veteran "felt like [he] was useless." Furthermore, the Veteran's irritability and angry outbursts caused conflicts with his coworkers and supervisors. His concentration issues, along with his confrontational defense mechanism when interacting with other people, were the eventual reasons for his termination from his job. The Veteran testified that, even when he knew he was alone, he "always felt like something was creeping up on me." The symptoms described by the Veteran's lay testimony are corroborated by both his wife's testimony at the March 2021 hearing, and the medical evidence on record. As noted above, a May 2011 VA examination found that the Veteran had difficulty interacting with other people, and noted that the Veteran's memory was impaired. A July 2014 VA examination noted that the Veteran's anxiety and/or fear was causing issues at work, and that he felt like he would have to quit work in the near future. The examiner also noted that the Veteran experienced regular panic attacks. The most recent VA examination from September 2018 showed that the Veteran was in a state of "near continuous panic." Based on the above, the Board finds that the preponderance of evidence shows that the Veteran has been unable to obtain and maintain substantially gainful employment, throughout the period of appeal, due to his service-connected PTSD. As discussed, the Veteran's irritability, concentration issues, impaired memory, and panic attacks caused instances of conflict in the workplace and rendered him unable to operate equipment. Medical records from as far back as 2011 show reports of difficulty dealing with other people in an employment setting, and the body of the Veteran's medical evidence shows that his PTSD was the primary factor in him leaving the general workforce around 2014. Regarding the months of employment in-and-around 2018, the Board finds that it does not rise to the level of substantially gainful occupation. This is based on the fact that it was for a short amount of time, during which the Veteran continued experiencing severe difficulties due to his PTSD (which eventually led him to quit again). Furthermore, the employment was, at most, part-time. As such, the Board finds that the little work he was able to do was tantamount to marginal employment. See also U.S. Department of Commerce, Census Bureau, Poverty Thresholds, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed October 6, 2021). As the preponderance of evidence shows that the Veteran's service-connected PTSD prevents him from obtaining and maintaining substantially gainful employment, the Veteran's claim of entitlement to a TDIU is granted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 70 percent for service-connected posttraumatic stress disorder is remanded. The Veteran claims that his acquired psychiatric disorder, diagnosed as PTSD, has worsened since his last VA examination and should be assigned a higher schedular evaluation. Most recently the Veteran's PTSD was evaluated by a VA examiner in September 2018. At the time, the examiner found that the Veteran experienced a depressed mood, anxiety, suspiciousness, "near-continuous panic or depression" that impaired his ability to function independently, disturbances of motivation or mood, and a difficulty in establishing and maintaining effective work and social relationships. At his March 2021 Board hearing, the Veteran, as well as his wife, testified that his symptoms had worsened. Specifically, the Veteran had become irritable towards his wife for no particular reason, he claimed he had difficulty being in public as he was "always nervous" and "just can't function," and he "just can't be around people" as they trigger his panic and anxiety. He stated that he always feels "like something [is] creeping up on him" even when he is alone in a familiar environment, like his own home. The Veteran's wife noted that his memory had worsened, and that he becomes disoriented to where he is, occasionally wandering off. The Veteran noted that he experiences delusions and hallucinations, which he called "daytime nightmares," wherein he feels he is back in Vietnam. The Veteran claimed that his treating psychologist noted that his symptoms had worsened. Based on the foregoing, the Board finds that an additional remand is necessary to allow the Veteran to further develop his claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination, to be performed by a qualified mental health practitioner to determine the severity of the Veteran's PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. The examiner must provide a well-supported rationale for all opinions provided. If the examiner cannot provide the necessary opinions without resorting to mere speculation, they must explain why that is the case. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.