Citation Nr: 21069672 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-42 547 DATE: November 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) from January 25, 2013, forward, is granted. FINDING OF FACT From January 25, 2013, forward, the Veteran's service-connected PTSD has prevented him from maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU based upon PTSD alone from January 25, 2013, forward, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed for TDIU in January 2021. The Board notes, however, that "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities." Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). "When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." Id. at 454. An August 2013 treatment record indicated that the Veteran was unemployable due to his psychiatric disorder. See August 2013 Discharge Note. Accordingly, the claim of entitlement to a TDIU is part of the Veteran's claim of entitlement to an increased disability rating. In January 2020 and March 2021, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. TDIU Total disability ratings for compensation may be assigned, where the schedular 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. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran has been service-connected for an acquired psychiatric disorder, rated as 70 percent disabling, during the entire appellate period. Based on his service-connected psychiatric disorder alone, the Veteran's claim for TDIU may be adjudicated on a schedular basis. See 38 C.F.R. §§ 4.16(a), 4.25; Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). Here, the evidence demonstrates that the Veteran's service-connected psychiatric disorder has rendered him unable to secure or follow a substantially gainful occupation as of January 25, 2013. In his application for TDIU, the Veteran indicated that he last worked full time in 2006, at which point he became too disabled to work. He stated that he completed one year of college and last worked as a gas measurement technician. See January 2021 VA 21-8940. The Veteran stated that his PTSD symptoms have remained at the same level of severity since 2006. He also stated that he constantly isolates himself, and his PTSD acts as a barrier between him and the world. He reported using all of his energy to control his anger otherwise he would explode and hurt someone. He related that he has cursed at people, threatened others with violence, and even gotten into physical fights, including with his adult son. The Veteran stated that he experiences extremely bad days where he can barely get out of bed. He further stated he was only able to work his previous job as he worked alone and was able to take as many breaks as he needed throughout the day. He stated that after work he would isolate himself to build up the energy for the next day's work. See January 2021 Statement in Support of Claim. The Veteran's wife stated that he will seclude himself in his bedroom for hours or days at a time due to his anxiety. She also described his suspiciousness of strangers and strange places, which makes him hypervigilant. She further stated he is angry all of the time and often takes his frustrations out on his family. See January 2020 G.D. Statement. In this regard, the Veteran and his wife are competent to discuss the Veteran's observable psychiatric symptomatology. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). In June 2021, a VA medical opinion addressing the Veteran's employability was obtained. The examiner opined that the Veteran's anxiety and difficulty concentrating would affect his attention and task execution to possibly hazardous degree. Furthermore, his chronic lack of restorative sleep would reduce his reliability and productivity, and require he take several naps during the day. The examiner found the Veteran would have no limitations in understating, remembering, and applying simple directions and instructions. Although the examiner noted the Veteran would have no limitations in interacting with others, they also noted the Veteran would have mild to moderate difficulty regulating his emotions and controlling his behavior. The examiner also found the Veteran would have moderate difficulty sustaining concentration, sustaining an ordinary routine, and regularly attending work. See June 2021 VA Medical Opinion DBQ. Based on the foregoing, the Board finds that the Veteran's PTSD rendered him unable to maintain substantially gainful employment consistent with his education and occupational background. In this regard, the medical and lay statements of record show that the Veteran experiences extreme isolation and cannot interact with others without losing his temper. Additionally, his PTSD causes him to experience difficulty with all but simple directions and instructions, and his chronic sleep impairment requires that he take several naps throughout the day. Finally, the Veteran's anxiety causes him to isolate himself in his bedroom for days at a time, interfering with his ability to regularly attend work. The Board notes that the June 2021 medical opinion reflects the Veteran would be able to obtain a job requiring involving simple directions and instructions. However, read as a whole, the June 2021 opinion supports the Veteran's claim of entitlement to a TDIU. Specifically, the examiner found the Veteran's lack of concentration could be hazardous, he would require several naps during the day, and he would have difficulty regularly attending work. As stated above, the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted, effective January 25, 2013, the date of the Veteran's application for an increased rating. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Increased Rating The Veteran's attorney requested that the Veteran's PTSD "be rated as 100 [percent] disabling or he should be awarded [TDIU]." See October 2021 Disagreement. As the attorney's statement reflects that the Veteran's appeal would be satisfied by either the assignment of a TDIU based upon his PTSD alone or the assignment of a 100 percent schedular rating under the pertinent diagnostic code, the Board need not also address whether a 100 percent schedular rating is warranted from January 25, 2013, forward, for the Veteran's service-connected PTSD under Diagnostic Code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.