Citation Nr: A21016325 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 210920-185913 DATE: October 5, 2021 ORDER From October 5, 2018, a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. REMANDED Entitlement to a TDIU prior to October 5, 2018 is remanded. FINDING OF FACT From October 5, 2018, the Veteran was unable to maintain substantially gainful employment due to the service connected other specified trauma and stressor related disorder with alcohol use disorder (acquired psychiatric disorder). CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, from October 5, 2018, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from February 1968 to February 1970. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), creates a new framework of review for veterans disagreeing with the Department of Veterans Affairs (VA) Regional Office's (RO) decision on their claim. By way of history, in May 2020 the Board of Veterans' Appeals (Board) denied entitlement to a TDIU. In May 2021, within one year of the issuance of the May 2020 Board decision, the Veteran filed a Supplemental Claim on the issue of entitlement to a TDIU. Entitlement to a TDIU was subsequently denied in a June 2021 rating decision, and in September 2021, the Veteran opted for direct review of this decision by the Board. Direct review is the appeal option to the Board in which a Board decision is issued based on evidence of record at the time of the prior decision. The Board cannot hold a hearing or accept into the record additional evidence in its direct review. Considering the procedural history, the fact that this is a timely supplemental claim under the AMA, and Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds the TDIU rating period on appeal to run from May 3, 2016 (effective date of service connection for an acquired psychiatric disorder) to the present. 1. TDIU from October 5, 2018 is Granted 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 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 issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), 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. 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). As discussed in the introduction, the Board had found that the TDIU rating period on appeal runs from May 3, 2016, the effective date for service connection for an acquired psychiatric disorder, to the present. The question of entitlement to a TDIU prior to October 5, 2018 is addressed in the remand section below. For the period from October 5, 2018, the service connected acquired psychiatric disorder, which is the only service-connected disability, met the disability rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a), as the disability was rated in excess of 60 percent from October 5, 2018 to the present. Review of the record, to include the September 2019 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, along with a Social Security Administration (SSA) letter dated November 2020, supports that the Veteran has not been substantially gainfully employed since prior to October 5, 2018. Per the DD Form 214, during service the Veteran was a heavy vehicle driver. Subsequent to service, the evidence of record, to include the September 2019 VA Form 21-8940 and a May 2021 lay statement from the Veteran, indicates that the Veteran primarily worked as a truck driver. The Veteran last worked in September 2017 after getting into a confrontation with another truck driver. VA received a private employability evaluation dated April 2021. Per the report, the private vocational consultant reviewed the claims file and conducted a telephonic interview with the Veteran. The vocational consultant reported that the Veteran had a high school education, a commercial driver's license, and no computer skills. Following service, the Veteran primarily worked as a trucker, driving both semi-trucks and a dump truck. As noted above, the Veteran last worked in September 2017, following an altercation with another driver. Following an occupational analysis, the private vocational consultant opined that it was at least as likely as not that the Veteran was precluded from securing and following substantially gainful employment, including unskilled sedentary employment, due to the symptoms of the service-connected acquired psychiatric disorder. Specifically, the Veteran would be unable to maintain substantially gainful employment due to the inability to have appropriate and effective interactions with supervisors, coworkers, and/or customers, and the fact that the Veteran would likely go off-task more than ten percent of the workday. The Veteran would be unable to meet workplace requirements due to symptoms of anxiety, intrusive thoughts, depression, decreased motivation, impaired sleep, flashbacks, irritability, aggression, an inability to establish and maintain relationships, isolative tendencies, and concentration and focus impairments. In rendering the above opinion, the private vocational consultant reviewed and discussed the findings of March 2017, October 2018, and August 2019 VA Disability Benefits Questionnaires (DBQs), a January 2018 VA treatment record, and the Veteran's March 2021 written lay statement. Such evidence supported a finding that the Veteran has been unable to interact with others successfully, both occupationally and socially, due to symptoms of the service-connected acquired psychiatric disorder. It was the vocational consultant's opinion that the Veteran's irritability and anger outbursts, low frustration tolerance, and isolative tendencies had at least as likely as not precluded the Veteran from all substantially gainful occupations, as even employment that is primarily performed independently still requires some minimal degree of interaction with others. The Veteran's symptoms would not be conducive to effective workplace collaboration and communication, and repeated anger outbursts would likely lead to termination of any future employment. Further, the vocational consultant found that the Veteran's symptoms would prevent more than two consecutive hours of work before the Veteran would lose focus and go off-track. Having reviewed all the evidence of record, lay and medical, the Board finds that, from October 5, 2018, the Veteran was unable to maintain substantially gainful employment as a result of the service connected acquired psychiatric disorder symptoms. As discussed above, a private vocational consultant, after reviewing the evidence of record and conducting an interview with the Veteran, found it at least as likely as not that the mental health symptoms would prevent the Veteran from securing and following substantially gainful employment since at least September 2017. Specifically, symptoms such as irritability, anger outbursts, suspiciousness of others, and isolative tendencies would prevent the Veteran from successfully working with others, and symptoms including anxiety, flashbacks, intrusive thoughts, impaired sleep, depression, and decreased motivation and focus would render the Veteran off-task and unproductive during the workday. For the above reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the service-connected acquired psychiatric disorder prevented the Veteran from obtaining or maintaining substantially gainful employment during the period from October 5, 2018 to the present; therefore, the Board finds that a TDIU is warranted for the rating period on appeal from October 5, 2018. 38 C.F.R. §§ 3.340, 3.341, 4.16. The question of entitlement to a TDIU prior to October 5, 2018 is addressed in the remand section below. REASONS FOR REMAND 2. TDIU Prior to October 5, 2018 is Remanded Remands are limited under the AMA to correct an error by an Agency of Original Jurisdiction (AOJ) to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal, or to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802(a). As discussed in the introduction, 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 consideration are met under § 4.16(b). Submission to the Director, Compensation and Pension Service, for adjudication under § 4.16(b) is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the combined disability rating percentage standards set forth in § 4.16(a). During the period prior to October 5, 2018, the Veteran's service connected acquired psychiatric disorder, the only service-connected disability, did not meet the combined disability rating percentage criteria of 38 C.F.R. § 4.16(a) for TDIU eligibility. Nonetheless, per the report from the April 2021 private employability evaluation, discussed above, the private vocational consultant assessed as likely as not that the Veteran was unable to secure and/or follow substantially gainful employment due to the service-connected acquired psychiatric disorder since at least September 2017. As the evidence supports that referral to the Director, Compensation and Pension Service, for TDIU consideration under 38 C.F.R. § 4.16(b) was warranted for the rating period prior to October 5, 2018 at the time of the June 2021 RO rating decision on appeal, remand is now warranted for that adjudication. The issue of TDIU Prior to October 5, 2018 is REMANDED for the following action: Refer the issue of a TDIU prior to October 5, 2018 to the VA Director of Compensation and Pension Service for adjudication of TDIU under 38 C.F.R. § 4.16(b). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.