Citation Nr: 21063656 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-11 963 DATE: October 15, 2021 SUPPLEMENTAL DECISION ORDER Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran has a combined rating of at least 70 percent, and he has a single rating above 40 percent disabling. 2. Resolving doubt in favor of the Veteran, his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a finding of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(a), 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from February 1967 to December 1968. By way of background, a January 2014 rating decision granted the Veteran entitlement to service connection for an anxiety disorder not otherwise specified (claimed as posttraumatic stress disorder (PTSD)), at a 30 percent rating effective September 27, 2012. In February 2014 the Veteran field a timely Notice of Disagreement (NOD) with that disability rating. He was issued a Statement of the Case (SOC), and the Veteran appealed that claim to the Board by submitting a VA Form 9 in April 2015. A subsequent rating decision from July 2017 changed the listing of the Veteran's disability from an anxiety disorder to PTSD and granted a temporary evaluation of 100 percent for a period of hospitalization, for the period from February 29, 2016, to May 1, 2016. In a decision from January 2019, the Board remanded the increased ratings claim for the Veteran's service-connected PTSD. Following additional development, the claim returned to the Board, and in a decision from September 2020, the Board increased the Veteran's disability rating to 70 percent for the entire period on appeal. Following that grant the Veteran, through his attorney, submitted a Motion to Reconsider the prior Board Decision in December 2020. The attorney's motion indicated disagreement with the decision only to the extent that it failed to adjudicate the separate issue of entitlement to a TDIU, which was argued should have been raised under Rice v. Shinseki, 22 Vet. App. 447 (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim). The Board has statutory authority to correct obvious errors in the record and possesses five methods by which to correct error: reconsideration, revision based on clear and unmistakable error, corrected orders, supplemental decisions, and vacatur. 38 C.F.R. §§ 20.904, 20.1000-1001, 20.1102, 20.1400-1411. A supplemental decision, remand, or order may be used for correcting an obvious error consisting of the inadvertent failure to address an issue within the Board's jurisdiction in a prior decision, remand, or order. In consideration of the above, the Board finds that the issue of entitlement to TDIU has in fact been raised by the record at the time of the September 2020 Board decision and that issue had not been addressed. Therefore, the Board is now issuing this Supplemental Decision to address the issue of entitlement to TDIU. The Veteran has claimed that he is unable to maintain gainful employment due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with their education and occupational experience. 38 C.F.R. § 4.16. Normally, consideration is given to such an award only if the Veteran has a single service-connected disability ratable at 60 percent or more, or if he has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16 (a). However, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. 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. 38 C.F.R. § 4.16 (b). 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 impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual 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, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is currently service connected for PTSD at 70 percent disabling; tinnitus at 10 percent disabling; and amoebic dysentery and bilateral hearing loss each at noncompensable ratings. His combined rating is 70 percent. Therefore, the Veteran meets the threshold requirement of 38 C.F.R. § 4.16 (a). Turning to the lay evidence, the Veteran submitted a statement in April 2016 in which he asserted that his service-connected PTSD causes him to live in fear and that he does not "like social outings" or interacting with others. He wrote that he cannot stay focused, that he has "had problems on jobs for years and [has] altercations," so he has had trouble keeping employment. Another statement from the Veteran from April 2020 notes that his mental health "is significant and causes me difficulties daily ... it is impossible for me to function daily without my wife to assist me and advice me." The Veteran's spouse submitted a statement in May 2015 writing that "he could never hold onto a job," so she had to complete various jobs like "cleaning toilets [and] driving a school bus," to help support the family. The Veteran's daughter submitted a statement in February 2019, noting that "it wasn't unusual for my father to be laid off from work ... it is not normal for a person to switch companies so often. The anger is memorable." The Veteran submitted a VA 21-8940 application for TDIU in which he stated that all of his service-connected disabilities prevent him from maintaining employment, with particular emphasis on his service-connected PTSD. The Veteran wrote that he worked off and on for approximately forty years for as a heavy equipment operator. The Veteran wrote that he was trained for that job as an apprentice, that he had no other job-related training, and that he has not completed any education following high school. The Veteran is competent to report the symptoms he experiences, such as those associated with his service-connected disabilities. He is also able to describe how he believes his disabilities may impact his ability to maintain gainful employment. In addition, the Veteran's family members are competent to report that which they have observed and experienced. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the medical evidence, the Veteran was afforded a VA examination in September 2013 in which mental health evaluation noted irritability and outbursts of anger, in addition to symptoms of anxiety and sleep impairment. VA treatment records indicate that the Veteran has struggled to maintain employment and that his irritability was an issue within the workplace. The Veteran experienced symptoms of PTSD including guilt, which had an impact on his mood. August and December 2014 VA treatment record show that the Veteran "has had difficulty for years holding employment," due to his PTSD symptoms. An April 2015 treatment record from the Veteran's VA social worker notes that he has problems with forming and keeping relationships, including with his family and "keeping employment." The Veteran was afforded a VA examination in May 2015 in which it was noted that he had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was afforded a VA examination in April 2020 in which the severity of his PTSD was summarized as having an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. During the evaluation, the Veteran stated that he had a 40-year career as a heavy equipment operator but noted that "his 'attitude problems' repeatedly caused him to be laid-off/let-go from jobs." The Veteran was noted to have symptoms such as anxiety, suspiciousness, panic attacks, depression affecting his ability to function independently, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in in adapting to stressful circumstances, including work or a work-like setting, among others. As noted above, the Veteran is also service-connected for bilateral hearing loss and tinnitus. The Veteran was afforded a VA examination in July 2021 in which the examiner noted that both disabilities would impact his ability to maintain gainful employment. The VA audiologist noted that the Veteran's hearing loss would impact his ability to work, in that he has "trouble understanding speech in quiet and background noise," that the needs the television and phone to be louder, and that he "avoids social situations due to [hearing] loss." Similar findings were made for the Veteran's service-connected tinnitus, in that it "affects ability to hear, concentrate and sleep." The Board finds that the medical evidence outlined above is competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds it is entitled to significant probative weight as to the Veteran's ability to maintain gainful employment. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Turning to an analysis of the evidence, the Board finds that the Veteran is unemployable due to his service-connected disabilities. The Veteran has provided consistent lay statements that his service-connected disabilities, mainly his service-connected PTSD, prevent him from maintaining gainful employment. He has indicated irritability with others, difficulty concentrating, and sleeping problems, among many other symptoms. The Veteran's family have submitted lay statements which indicate he has been laid off frequently and unable to maintain a job for very long. And while the Veteran's TDIU application indicates that he held the same job for approximately 40 years, subsequent VA mental health evaluations indicate that he had that job on and off, that it was not continuous employment, and this was largely due to his PTSD. That same TDIU application indicated that the Veteran has no college education, nor experience or training other than that singular job. Medical evidence frequently identifies that the Veteran has significant occupational difficulties, and the symptoms identified would each impact his ability to maintain gainful employment. His other service-connected disabilities, including bilateral hearing loss and tinnitus, both impact his ability to hear others, concentrate, and thereby understand tasks in a workplace setting. Thus, the Veteran's statements, his work history, the statements from his family, and the medical evidence, depict an individual unable to maintain gainful employment. 38 C.F.R. § 4.16. To this point, the adjudicator is charged with interpreting the competent and credible evidence of record as a whole and reconciling such to accurately reflect the disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2. Moreover, the ultimate TDIU determination is placed on the VA adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, in weighing the lay and medical evidence of record, as well as the Veteran's education and work history, the Board finds that the weight of the evidence demonstrates that he is not able to obtain or maintain substantially gainful employment due to his service-connected disabilities. Therefore, entitlement to TDIU is warranted. 38 C.F.R. § 4.16. R.M. Kelly R.M. Kelly Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.