Citation Nr: 21066747 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 12-30 124 DATE: November 2, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) effective October 27, 2015 is granted. FINDING OF FACT Beginning October 27, 2015, the Veteran meets the schedular criteria for assignment of a TDIU due to service-connected posttraumatic stress disorder (PTSD) and his service-connected PTSD is shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSION OF LAW The criteria for assignment of a TDIU effective October 27, 2015 have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1964 to September 1967. This claim came before the Board of Veterans' Appeals (Board) on appeal from February 2011 and July 2014 rating decisions issued by the RO. In April 2021, the Board remanded this appeal for further development of the record. The requested development has been completed and the case is returned to the Board for appellate disposition. The appeal originally included the issues of service connection for bilateral shoulder, bilateral wrists, and bilateral thumb disabilities. In August 2021, the RO granted service connection for glenohumeral and acromioclavicular joint osteoarthritis of the right and left shoulders, degenerative arthritis of the right and left wrists, and degenerative arthritis of the right and left thumbs effective March 20, 2013. The claims for service connection for bilateral shoulder, bilateral wrists, and bilateral thumb disabilities have been resolved and are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2) (2012) 1. Entitlement to a TDIU for the period prior to April 1, 2016 Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15. The sole fact that a Veteran happens to be unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16 (a). The fact that a Veteran is unemployed is generally insufficient to demonstrate that he is considered "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Before April 1, 2016, service-connection was in effect for PTSD to include alcohol dependence and amphetamine dependence in remission (30 percent disabling prior to October 27, 2015; 70 percent disabling from October 27, 2015); glenohumeral and acromioclavicular joint osteoarthritis of the right shoulder (20 percent disabling from March 20, 2013); glenohumeral and acromioclavicular joint osteoarthritis of the left shoulder (20 percent disabling from March 20, 2013); degenerative arthritis of the right wrist (10 percent disabling from March 20, 2013); degenerative arthritis of the left wrist (10 percent disabling from March 20, 2013); degenerative arthritis of the right thumb (10 percent disabling from March 20, 2013); degenerative arthritis of the left thumb (10 percent disabling from March 20, 2013); tinnitus (10 percent disabling from March 20, 2013); and, bilateral hearing loss (non compensable prior to November 7, 2016). The combined rating for these service-connected disabilities is 30 percent prior to March 20, 2013; 80 percent prior to October 27, 2015; and, 90 percent from October 27, 2015. A 70 percent rating for the Veteran's service-connected PTSD effective October 27, 2015 was awarded in a January 2016 rating decision. In the April 2021 decision, the Board determined that the Veteran was not entitled to a 70 percent rating prior to October 27, 2015 (i.e., he was not entitled to a rating greater than 30 percent prior to October 27, 2015). The April 2016 VA PTSD examination report reflects that the Veteran became sober in 1988 and worked as a school bus drive for 12 years before retiring in 2007. He then drove a bus for three years and had not worked since November 2010 when he turned 65. The psychologist documented that the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity. The psychologist concluded that the Veteran clearly had PTSD, with a long history of alcohol and drug addiction, failed marriages, and numerous jobs. The Veteran had maintained his sobriety since 1988 and had received positive results from treatment. The psychologist determined that the Veteran's PTSD symptoms on current examination appeared to be a progression of his previously diagnosed PTSD. The January 2011 VA PTSD examination report reflects that the Veteran had lost numerous jobs due to his alcohol use. However, his alcohol use lessened, and his occupational functioning began to stabilize. He had been a bus driver for 15 years and denied any occupational problems during that period. The June 2014 VA hearing loss and tinnitus examination report reflects that the Veteran's bilateral hearing loss disability and tinnitus impacted ordinary conditions of daily life, including the ability to work. The Veteran reported that he could not hear sounds such as signals or alarms without his hearing aids. There were a lot of voices that he could not hear. Without his hearing aids, his tinnitus was unremitting and would wake him up at night. The August 2019 VA shoulder and arm conditions examination report reflects that the Veteran's right and left shoulder disabilities impacted his ability to work. He was unable to lift more than five pounds to shoulder level and was unable to lift anything about shoulder level. The August 2019 VA wrist conditions examination report reflects that the Veteran's right and left wrist disabilities impacted his ability to work. He demonstrated moderate reduction in repetitive grip/grasp ability of both hands for objects that weighed more than 15 pounds. The August 2019 VA hand and fingers conditions examination report reflects that the Veteran's right and left thumb disabilities also effected his ability to work. He demonstrated moderate reduction in repetitive grip/grasp ability of both hands for objects that weighed more than 15 pounds. The July 2021 VA shoulder and arm conditions examination report reflects that the Veteran's right and left shoulder disabilities caused difficulty lifting more than 15 pounds overhead. Therefore, he could function in a sedentary or physical work environment that did not involve overhead lifting. The July 2021 VA wrist conditions examination report reflects that the Veteran's right and left wrist disabilities impacted his ability to work. He would function best in a sedentary or physical work environment that did not involve too much heavy lifting, pushing, and pulling of more than 15 pounds. The July 2021 VA hand and fingers examination report reflects that the Veteran's right and left thumb disabilities effected his ability to work. Because of his difficulty with gripping items, the Veteran would function best in a sedentary or physical work environment that did not involve too much use of grip strength but would allow him to lift with open hands without having to grip. Otherwise, his right and left thumb disabilities caused no other functional limitations. The Veteran's application for a TDIU received in February 2016 reflects that his PTSD prevents him from securing or following a substantially gainful occupation. The Veteran reported that he became too disabled to work in November 2010. He had completed high school and had no other reported additional training. He reported that his PTSD prevented him from obtaining and sustaining meaningful employment because he was easily angered at coworkers when they made mistakes and did not work well with others. He stated that he would verbally abuse others who committed minor mistakes in the workplace and was not a "team player." He preferred to work alone and would not interact with his coworkers in a group setting. When he drove a school bus, he would get into shouting matches with the students because it was difficult for him to accept some of their disruptive behaviors. When he received criticism from his supervisors, he would reject their criticism and get into verbal altercations with them. He concluded that his PTSD had been an obstacle in his securing and maintaining meaningful and sustained employment. In the April 2020 rating decision, the RO granted a TDIU effective from April 1, 2016, "the date the evidence demonstrated you met the criteria for individual unemployability and your disability made you unemployable." The Veteran meets the schedular criteria for assignment of a TDIU due to service-connected PTSD effective October 27, 2015 (i.e., PTSD 70 percent disabling). As the evidence demonstrates that the Veteran's service-connected PTSD renders him unable to secure and engage in substantially gainful employment, assignment of a TDIU rating as of the date the Veteran met the schedular criteria for TDIU due to service-connected PTSD is warranted. Thus, an effective date of October 27, 2015, for the grant of a TDIU rating is warranted. The evidence weighs against finding that the Veteran's service-connected PTSD in concert with his other service-connected disabilities (i.e., hearing loss, tinnitus, right and left shoulder disabilities, right and left wrist disabilities, and right and left thumb disabilities), precluded him from obtaining or engaging in any form of substantially gainful employment before October 27, 2015. The January 2011 VA PTSD examination report reflects that after becoming sober the Veteran's occupational functioning stabilized. He had been a bus driver for 15 years and denied any occupational problems during that period. The June 2014 VA hearing loss and tinnitus examination report reflects that the Veteran had some functional limitations due to his bilateral hearing loss disability and tinnitus but his hearing aids provided relief of some of his symptoms and alleviated some of his limitations. The August 2019 and July 2021 VA shoulder and arm conditions, wrist conditions and hand and fingers conditions examination reports reflect that the Veteran could engage in sedentary and physical employment with certain accommodations. Furthermore, the Veteran's application for a TDIU received in February 2016 reflects that only his PTSD prevents him from securing or following a substantially gainful occupation. Thus, the Board concludes that the evidence shows that the Veteran was not unemployable due solely to his service-connected disabilities prior to October 27, 2015. A TDIU, effective October 27, 2015, is awarded and the claim on appeal to this extent is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.