Citation Nr: 21068880 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 15-22 309 DATE: November 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to April 29, 2021, is granted. FINDING OF FACT Giving the Veteran the benefit of the doubt, his service-connected disability renders him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to December 1969. In an August 2013 rating decision, the Regional office (RO) denied entitlement to a TDIU. The Veteran had a hearing before the undersigned Veterans Law Judge in February 2019 In July 2019, the Board remanded this matter, in part, to defer adjudication until the completion of a posttraumatic stress disorder (PTSD) severance action initiated by the RO in the August 2013 rating decision. In a February 2021 rating decision, the RO did not sever PTSD, but continued the 70 percent disability rating. In a September 2021 rating decision, the RO granted a 100 percent disability rating for PTSD, effective April 29, 2021. The RO also granted entitlement to SMC at the housebound rate since that time. As the Veteran met the maximum benefits possible as of April 29, 2021, only the period prior to April 29, 2021 for entitlement to a TDIU is currently before the Board. 1. Prior to April 29, 2021, entitlement to a TDIU. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Prior to April 29, 2021, the Veteran is service connected for multiple disabilities, including PTSD (70 percent), voiding dysfunction (40 percent), tinnitus (10 percent), and erectile dysfunction (special monthly compensation). He had a combined 80 percent disability rating. He meets the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a). The Veteran filed his claim for a TDIU in January 2013. At that time, he claimed he was unable to work due to his service-connected PTSD and prostate disability. He last worked in 1995 as a longshoreman. An August 2011 VA medical record indicated that the Veteran had not worked in 16 years due to a nonservice-connected back injury, wherein he had three herniated discs. Such report is consistent with a November 2020 VA Form 21-4192 wherein his former employer indicated that the Veteran had retired on disability pension at the end of 1994, indicating a work-related injury. An August 2011 VA examination for genitourinary disorders indicated frequent nocturia, mild stress incontinence, and needing protection especially during the day. Per the April 2012 VA examination for PTSD, the Veteran had worked as a longshoreman for 30 years, before his back injury for which he was put on disability. The examiner found that although the Veteran had a stable work history, his current PTSD would impact his vocational productivity due to anxiety and depression and resultant avoidance of interpersonal contact. His restricted affect would also serve to impact negatively on potential employment. The VA examiner also noted symptoms such as sleep impairment, hypervigilance, social isolation, mood swings with irritability, avoidance of all cues and stimuli associated with military experience, excessive use of alcohol to deal with subjective anxiety and sleep impairment, depression secondary to service-connected radical prostatectomy with social avoidance due to embarrassment of incontinence and reliance on diapers. The examiner found significant anxiety and depression impacted overall quality of life and resulted in social avoidance and impairment. A June 2013 private mental health evaluation, by Evers Psychological Associates, noted that the Veteran woke several times a night and had a very short fuse. His mind would also wander, and he would get lost while driving. H reported always watching behind him and keeping an eye on everything. In a July 2014 update, the provider noted that the Veteran had consistently reported to treatment with a depressed mood and until recently had been tearful at sessions. He has felt antsy since he stopped drinking and was fidgety. In a January 2019 record, the provider noted that the Veteran had continued treatment until November 2016 and was now returning to treatment. The Veteran reported that he was drinking again and not sleeping. He continued to think of his brother's death in Vietnam and his own stressors while stationed in Korea. He continued to be depressed and anxious. In an April 2013 letter, Dr. M.P.E. reported that the Veteran was currently on disability and his condition hindered ability to work. In a May 2013 lay statement, the Veteran's wife reported that the Veteran had developed severe memory loss and provided examples. In a July 2014 private treatment record, Dr. Z.A.R. reported that the Veteran had been sober for a month but was still sad and depressed. He had crying spells on occasion, felt hopeless, and was having significant signs and symptoms of PTSD, which makes him nervous. His PTSD was overwhelming. Per his April 2012 VA examination, the Veteran's previous work experience was as a longshoreman, before he became too physically disabled to perform that job due to his nonservice-connected back disorder. He had a 10th grade education and had not completed his GED. The Board finds that there is evidence both supportive and not supportive to the Veteran's claim. Importantly, the determination of whether at TDIU is warranted is a legal one, not a medical one. The realistic chances of the Veteran finding and maintaining substantially gainful employment due to his service-connected disabilities is low. Given the Veteran's psychological and physical limitations, in conjunction with his background (including past employment in only manual labor activities) and giving him the benefit of the doubt, the Board finds that his service-connected disabilities preclude most employment prior to April 29, 2021. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating"). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.