Citation Nr: 21067166 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 10-45 782 DATE: November 3, 2021 ORDER Entitlement to a total disability rating due to individual unemployability since March 20, 2007 is granted. FINDING OF FACT The Veteran's service-connected disabilities rendered him unable to secure and follow substantially gainful employment throughout the appeal. CONCLUSION OF LAW The criteria for entitlement to a total disability rating due to individual unemployability throughout the appeal (since March 20, 2007) have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Marine Corps from July 1969 to June 1973. He is a veteran of the Vietnam War era and the recipient of the Purple Heart among other medals. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO), assigning an initial rating for the Veteran's PTSD. The Veteran appealed that rating, and in a May 2013 decision, the Board found that the record raised the issue of entitlement to a total disability rating due to individual unemployability (TDIU) in connection with an increased rating appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of the appeal, VA was notified of the Veteran's May 2015 death. The Veteran's surviving spouse (Appellant) was granted substitution as claimant in April 2019. The issue of entitlement to TDIU was remanded and subsequently granted in July 2019 with an effective date of June 10, 2013. The Appellant appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2020 Joint Motion for Partial Remand, the Court ordered the July 2019 Board decision be vacated on the issues of entitlement to an initial rating in excess of 30 percent for PTSD and entitlement to TDIU prior to June 10, 2013. In November 2020, the Board granted a rating of 70 percent for PTSD effective March 20, 2007. However, the issue of TDIU prior to June 10, 2013 was remanded to the RO for further development. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's November 2020 remand directed the RO to obtain education history and employment information for the period March 20, 2007 to June 10, 2013. The RO provided the Appellant with VA Form 21-8940 which was completed and submitted in July 2021. As such, substantial compliance with the Board's remand has been achieved and the issue has been developed for adjudication. Id. at 271. Total Disability Rating due to Individual Unemployability A total disability rating may be assigned when it is established that service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes 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, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16 (a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107 (b). 1. Entitlement to total disability rating based on individual unemployability prior to June 10, 2013 The Appellant contends the Veteran was entitled to an award of TDIU prior to June 10, 2013. Specifically, the Appellant asserts the Veteran was unable to obtain or maintain substantially gainful employment due to his PTSD symptoms since his last full-time employment ceased in January 2013. Following the Board's November 2020 remand, the RO was instructed to provide the Appellant the opportunity to submit the Veteran's employment information, education, and earning history via a VA Form 21-8940. In a December 2020 correspondence, the Appellant's representative informed the RO it was working to obtain the necessary information regarding the Veteran's employment history. However, the RO adjudicated the claim the following week, denying an earlier effective date, indicating employment information prior to June 10, 2013 had not yet been provided. The Appellant and his representative have since submitted a VA Form 21-8940, an accompanying affidavit of the Appellant and additional legal argument in support of the appeal. Therefore, the question for the Board is whether it is factually ascertainable the Veteran was unemployable due to his service-connected disabilities prior to his June 10, 2013 effective date. The Veteran was service-connected for PTSD, rated 70 percent from March 20, 2007; bilateral tinnitus, rated 10 percent effective November 4, 2010; and noncompensable left ear hearing loss, from November 4, 2010. Accordingly, the Veteran meets the schedular requirements for TDIU since March 20, 2007. See 38 C.F.R. § 4.16 (a). The basis of the Board's grant of TDIU is a June 2013 psychiatric examination. There, the VA examiner concluded the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, and noted the Veteran's capacity to secure and maintain substantially gainful employment was markedly impaired due to his PTSD symptoms. While it is clear the Veteran was unable to maintain gainful employment at the time of his June 2013 VA examination and thereafter, lay and medical evidence also supports entitlement prior to this date. After careful consideration of the entire record, the Board finds the limitations which prompted the award of a TDIU are substantially the same as those throughout the appeal. The record shows a progression of interpersonal conflict and impaired job performance in the Veteran's employment as early as 2008. VA treatment notes show the Veteran consistently exhibited irritability and impulsive behavior at work as a result of his PTSD. In January 2008, he reported he felt increased irritability and easily lost his temper on the job. The Veteran reported in April 2009 that he verbally lost his temper at work and was warned he would be terminated if it occurred again. A February 2010 statement by the Veteran confirms he continued to have problems at work due to his inability to get along with coworkers. During regular treatment in December 2010, he noted he attempted to control his temper and irritability by keeping to himself and avoiding coworkers. In June 2011, the Veteran again complained of increased difficulty getting along with coworkers and reported recently being reprimanded by supervisors for his behavior. The Appellant's VA 21-8940 notes the Veteran last worked full time in January 2013 as an assembly line worker and this is supported by contemporaneous evidence. The Appellant submitted a January 23, 2013 statement indicating the Veteran had a history of difficulty in adapting to stressful circumstances, in both his personal life and employment settings. She reported the Veteran was unable to maintain employment at his last two jobs due to his inability to maintain working relationships, including the position as an assembly line worker. A January 25, 2013 psychiatry note also indicates the Veteran had recently quit his job due to conflict with coworkers. CAPRI, 3/21/2014, pg. 55/373. Prior to this period, the evidence shows the Veteran was employed in construction work and for several years at a denim factory until the plant closed. VA Exam, 6/10/2013, pg. 5/10. He was noted to have worked the night shift that allowed him to work independently with little contact with supervisors and coworkers. He was later employed for 12 years by a furniture company until the workforce was laid off in 2005. CAPRI, 3/21/2014, pgs. 321/373. The Veteran was then employed for six years with a lumber company until June 2011 when he left the position due to continued impulsivity and irritability with coworkers. Id. at 119,121/373. During that employment, he received five letters of reprimand due to his inappropriate behavior. VA Examination, 6/10/2013, pg. 5/10. He remained unemployed for nearly a year until he was hired at a seasonal factory in October 2012. CAPRI, 3/21/2014, pg. 64/373. However, he left the position in January 2013 due to disagreements with coworkers and the threat of termination. The Veteran did not subsequently find full-time employment. The evidence confirms the Veteran did not obtain his high school diploma or GED equivalent and, prior to his military service, the Veteran was employed as a dishwasher. VA Examination, 6/10/2013, pg. 5/10. He is not shown to have otherwise received specialized advancement, training, or other education. While the Appellant affirms that she is unsure the Veteran's exact income and earnings prior to his death, the evidence shows his last full-time employment wage of eight dollars per hour. In support of the appeal, the Appellant has submitted a Disability Benefits Questionnaire (DBQ) and occupational assessment completed by Dr. ELS in July 2020. DBQ, 10/16/2020. Dr. ELS conducted an interview of the Appellant and review of the Veteran's claims file in formulating her opinion. She concluded it is at least as likely as not the Veteran's PTSD symptoms resulted in occupational and social impairment for the period March 2007 to June 2013. Dr. ELS' report focuses on the Veteran's PTSD, and his resulting inability to form healthy interpersonal relationships, as the core impairment in his ability to maintain gainful employment. She further notes the Veteran's continued feelings of depression, hopelessness, despair, suicidal ideation, nightmares, and impaired impulse control. Dr. ELS incorporates the Veteran's previous VA examinations into her opinion and further cites medical literature in support of a connection between interpersonal difficulties, PTSD, and unemployability. Given the Veteran's skills consisted of factory and assembly line responsibilities, his sporadic employment history with jobs often ending due to PTSD symptoms, and his limited education without subsequent training in another field, the Board finds he would be unable to maintain gainful occupation given the severity of his psychiatric disability throughout the period on appeal. Regular psychiatric treatment shows a history of distress at work and an inability to cope with stressful circumstances or perceived conflict. While the Veteran voluntarily left his last full-time position, the evidence shows he sought counseling to control his impulsivity but was ultimately faced with pending termination. Additionally, it is plausible the Veteran's hearing loss and tinnitus disabilities contributed to his difficulties in concentrating and communicating in noisy environments consistent with an assembly line or factory. Accordingly, the Board concludes the evidence shows that the Veteran was precluded by reason of his service-connected disabilities from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience throughout the appeal. 38 C.F.R. §§ 3.340, 3.341, 4.16. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.