Citation Nr: 21069136 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-15 241A DATE: November 17, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran served on active duty from May 1967 to July 1970. 2. The Veteran's service-connected disabilities preclude him from securing and maintaining gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal was previously denied by the Board in a March 2019 decision. The Veteran appealed these findings to the Veterans Claims Court. In January 2020, the Court Clerk granted a Joint motion for Remand (JMR). The Board remanded the appeal for additional development in May 2021. There has been substantial compliance with the remand directives, and there is no bar to proceeding with the appeal. Stegall v. West, 11 Vet. App. 268, 271. 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 as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). A TDIU may be assigned, if the scheduler rating is less than total, 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, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16 (a). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service-connected for posttraumatic stress disorder (PTSD) at 30 percent, diabetes mellitus type II (DM) at 20 percent, right lower extremity peripheral neuropathy (PN) rated at 20 percent, left lower extremity PN rated at 20 percent, left upper extremity PN rated at 10 percent, right upper extremity PN rated at 10 percent, tinnitus rated at 10 percent, and bilateral hearing loss rated as noncompensable. Right and left lower extremity PN and right and left upper extremity PN share a common etiology (with DM), and the combined rating of such disabilities, which exceeds 40 percent, is considered a single disability for purposes of the 38 C.F.R. § 4.16(a) schedular rating criteria. His combined schedular rating is 80 percent; thus, the schedular rating requirement for TDIU is met. Turning to the evidence, the Veteran has been unemployed since approximately 2008 when he last worked as a forklift operator and mechanic, a job which he had held for over 20 years. He stated that he has stopped working due to difficulties with numbness in his extremities which precluded him from completing several tasks required of a mechanic with the required specificity. At to the medical evidence, a February 2014 VA examiner found that PN had no impact on his ability to work. When asked for reasoning, the examiner simply referred to the Veteran being retired, which is not relevant for purposes of a TDIU. At a March 2015 VA examination, the Veteran stated he was unable to work with any tools or play his guitar due to a lack of sensation in his hands. The examiner noted that there was incomplete paralysis of all extremities but opined that it did not preclude him from engaging in sedentary work; however, the examiner noted that PN did specifically prevented function at a physically active occupation. In a December 2020 private opinion, the Veteran's psychiatrist opined that service-connected PTSD would preclude him from functioning in the work force. Specifically, the clinician opined that the clinical assessments of PTSD represented a very significant minimization of his symptomatology which was severe and intense. The clinician noted that this was not altogether surprising given the Veteran's reluctance to seek treatment. The clinician noted that the constellation of the Veteran's symptoms, to include medical symptoms due to service-connected PN were equally disabling. The clinician specifically noted symptoms of flashbacks, nightmares causing extensive sleep impairment and as a result, struggles with focus and concentration of the job. Additionally, the Veteran reported dissociative episodes at work and a loss of reality testing on the job site, which made him a significant liability. Additionally, the clinician relayed symptoms of social isolation and emotional numbing, making it hard for him to engage in appropriate interactions in basic or work settings. Next, the clinician noted that PTSD manifested as feelings of extraordinary irritability, anger, and significant verbal aggression. The Veteran was consistently described as being hypervigilant with an exaggerated startle response, and homicidal behavior which led to incarceration. The clinician went on to state that the Veteran had very sparse psychiatric services, but that when interviewing him, it was evident that he experienced classic signs and symptoms of trauma-based PTSD. Importantly, the clinician noted that the severity of PTSD symptoms caused an inability for him to engage in consistent medication management or psychotherapy due to shame, self-loathing, suspiciousness, paranoia, and distrust of the system. These symptoms, the clinician opined, were consistent with severe and pervasive mental illness. Additionally, the clinician noted that the Veteran forced himself to work until 2008 by utilizing adverse coping mechanisms that later failed him. Finally, the clinician noted that the Veteran's capacity for social or work settings was severely difficult due to an inferior capacity for communication, periods of violence, threatening behavior, irritability, anger, intrusive thoughts, dissociative episodes, avoidance, and impulsivity. These behaviors were specifically dangerous to co-workers and management at any job which the Veteran may occupy. The Veteran then submitted a March 2021 private employability assessment. The clinician noted that she specifically reviewed the Veteran's medical history, service records, and interviewed him. She opined that the combination of the Veteran's impairments precluded him from obtaining and maintaining gainful employment. The clinician noted that the Veteran's educational history consisted of a high school diploma and twelve days of junior college which he did not complete. He then completed vocational training to work as a mechanic, which was what he did for over 20 years. She noted that throughout the Veteran's medical records, he referred to a sensation akin to wearing a glove at all times which caused numbness in his extremities due to PN. She referred to a December 2020 mental health evaluation which found that the Veteran's mental illness and PN prevented him from managing even the simplest of occupational settings. She noted that he was suffering from severe symptoms of PTSD which showed that he went through approximately 12 to 15 jobs that included voluntary quitting, firings, and disciplinary counseling because he did the job "his way." She further noted that he had no transferable skills from his education and work experience for sedentary employment. In this regard, the Veteran would require additional training and learning of new skills to perform sedentary work which would be even more difficult considering his advanced age. Specifically, he had a high school education and no other training or work experience for sedentary options. Although the Board notes that age cannot be considered in TDIU. She also referred to his PTSD symptoms preventing sedentary work as level of communication skills, required for any job, as well as his volatile behavior, would not be tolerated in a traditional workplace. Specifically, she relied on his disciplinary history at work and that he has had four marriages which resulted in severe issues. Next, she notes that his work history required a frequent handling and fingering of tools in completion of essential job duties. Specifically, he needed to feel accurately when using mechanical tools, sense heat or cold, and engine parts and vibrations. In this regard, with decreased sensation in his hands and fingers, he is at risk for injury and not completing tasks accurately. In sum, she opined that the Veteran's PN and PTSD would preclude him from doing the type of work which he had engaged in and was trained for, for most of his life. Additionally, while sedentary employment may not be precluded, he had no training to engage in such and his advanced age and declining health would not be conducive to such training. Finally, she noted that his temperament and communication skills due to his service-connected PTSD would likely prevent him from functioning properly in a work environment. Based on the above, the private consultations support a finding that the Veteran's service-connected disabilities render him unable to maintain substantially gainful employment due specifically to his PN and PTSD. As such, entitlement to a TDIU is warranted and the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.