Citation Nr: 21070480 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-18 155 DATE: November 24, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective April 1, 2007 is granted. FINDING OF FACT Beginning April 1, 2007, the Veteran meets the schedular criteria for assignment of a TDIU rating and his service-connected disabilities are shown to preclude the Veteran from securing and following a substantially gainful occupation consistent with his work and education background. CONCLUSION OF LAW The criteria for assignment of a TDIU effective April 1, 2007 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to March 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the RO. The Veteran testified before the undersigned in an August 2013 video-conference hearing. A transcript of the hearing is included in the electronic claims file. In a March 2017 decision, the Board denied entitlement to a TDIU prior to October 24, 2014. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2018, the Court granted the parties' Joint Motion for Partial Remand (Joint Motion), vacated the March 2017 decision, and remanded the issue to the Board for additional development of the record. In particular, the parties agreed that the Board's statement of reasons and bases for its denial of a TDIU prior to October 24, 2014 was inadequate because the Board failed to adequately consider whether the Veteran's employment during the periods of time when he was working was considered marginal or took place in a protected work environment and whether the Veteran was unemployable for at least some portions of the years at issues. The parties noted that marginal employment shall not be considered substantially gainful employment. In an August 2018 decision, the Board again denied entitlement to a TDIU prior to October 24, 2014. The Veteran appealed the Board's decision to the Court. In October 2020, the Court granted the parties' Joint Motion, vacated the August 2018 decision, and remanded the issue to the Board for additional development of the record. In particular, the parties agreed that the Board's statement of reasons and bases for its denial of a TDIU prior to October 24, 2014 was inadequate because the Board failed to consider recently submitted evidence. Specifically, the parties noted that the Veteran's wife had submitted a statement in May 2018 concerning the Veteran's inability to work; she asserted he required a protected work environment. His wife explained that the Veteran could only work in an "accommodating, safe work environment" and he was unable to work in jobs with unexpected triggers. Further his wife reported that contact with people made the Veteran feel agitated, very guarded, and he would have to leave his work area. Reportedly, he was constantly reprimanded for having to leave work after dealing with certain people and had been forced to take a mandatory, extended administrative leave of absence due to his confrontational interactions, irritability, and anger outbursts and name calling. Ultimately, in the October 2020 Joint Motion, the parties agreed that the Board erred when it did not discuss the evidence submitted in May 2018 in the context of its determination that the record did not indicate that the Veteran's work performance was affected by his service-connected posttraumatic stress disorder (PTSD), but rather only his ability to interact with others was affected by his PTSD and there was no indication that the Veteran's job duties required him to interact with others. 1. Entitlement to a TDIU prior to October 24, 2014 Here, the Veteran essentially argues that he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities beginning January 1, 1985, the date service connection was granted (and a 70 percent rating was assigned) for PTSD. Under the applicable criteria, 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). 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. Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a) Prior to October 24, 2014, service-connection was in effect for nodules of left and right lung lobes and stage IV metastatic carcinoma (100 percent disabling from August 5, 2010), PTSD (70 percent disabling), paroxysmal positional vertigo (30 percent disabling), ankylosis of the left thumb (noncompensable prior to April 23, 2012; 20 percent disabling from April 23, 2012), bilateral hearing loss (non compensable prior to April 23, 2012; 10 percent disabling from April 23, 2012), and tinnitus (10 percent disabling); the combined rating for all these service-connected disabilities was 70 percent from January 23, 1985 and 100 percent from August 5, 2010. Because the Veteran is receiving a schedular 100 percent rating for metastatic carcinoma of the lungs, the Board must determine if he meets the criteria for a TDIU prior to October 24, 2014 based only on the remaining service-connected disabilities. The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim or the date entitlement arose, whichever is later. The law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b). In the August 2012 rating decision, service connection was granted for PTSD and a 30 percent rating was assigned effective April 23, 2012. In his October 2012 Notice of Disagreement (NOD), the Veteran disagreed with the April 23, 2012 effective date and assigned 30 percent rating for his PTSD. In a March 2014 Board decision, the Board granted an earlier effective date of January 23, 1985 for the award of service connection for PTSD (the RO effectuated the Board decision in March 2014). In the March 2017 Board decision, the Board granted an increased 70 percent rating for the PTSD throughout the appeal period (i.e., from January 23, 1985) (the RO effectuated the Board decision in March 2017). Ultimately in the August 2018 decision, the Board denied a rating greater than 70 percent for the PTSD. The Veteran's TDIU claim was considered to have been raised by the record and was a component of the increased rating claim for the PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The January 1986 psychiatric examination report documents diagnosis of chronic, delayed PTSD. The examination report reflects that after service the Veteran was employed as a police officer in the Town of Warren for 4 years and then went to work for the Department of Defense (DoD) at Otis Air Force Base for 7 years. Reportedly, he resigned from both positions because of his difficulty controlling his temper and excess irritability. He later took a job with the Polk City police force working with canines but was asked to leave his position. Polk had a sizable migrant population and the Veteran had poor interactions with that population of residents because it reminded him of his experiences in Vietnam and he would behave inappropriately toward them. For instance, he would let the police dogs loose to attack this population of residents. The June 2012 PTSD examination report reflects the psychologist's assessment that the Veteran's PTSD symptoms were not severe enough either to interfere with occupational and social functioning or require continuous medication. The Veteran reported that he worked security for the Judicial Branch of the state of New Hampshire and had been doing so for the past 4 years with "excellent" job performance. Prior to that he worked doing quality assurance (QA) for Gillette Corporation for 12 years and prior to that he had received Workman's Compensation (4 years) from an injury sustained working in his father's bicycle shop. He worked in the bicycle shop for 5 years. Prior to working in the bicycle shop, he was a Deputy Sheriff for 3 years and prior to that he was a patrol officer for 8 years. Prior to that, he was a Department of Defense (DoD) police officer for 7 years. He denied ever having to resign because of his temper as previously transcribed in the report in January 1986. The March 2014 VA PTSD examination report reflects the psychologist's assessment that the Veteran's PTSD was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that he had been working per diem, intermittently (i.e., off and on) for 5 years doing security for the judicial system in New Hampshire. Reportedly, he last worked 3 months earlier and performed an 8-hour shift. He averaged approximately 40 hours of work per month but lately had been refusing to work. He reported that he had a good work history and denied past reports indicating that he was terminated as a police officer due to his temper. The psychologist concluded that the Veteran was a good worker when he worked; however, he last worked 3 months earlier. The Veteran spent his days assisting with household chores and helping to look after his granddaughter. A June 2014 statement from a private psychologist reflects that his assessment is based on telephonic interview with the Veteran's wife. Reportedly, prior to 1985, the Veteran resigned from his law enforcement position due to conflicts directly related to PTSD. The psychologist concluded that the effects of PTSD significantly limited the Veteran's ability to compete in the job market, resulting in him working fewer hours and earning less wages and earnings. From 1985 to 1989, the Veteran worked at a family-owned bicycle shop. In 1985, he was exhibiting unpredictable outbursts of anger and rage. In 1986, his aggressive behavior was magnified and his rage was out of control. In 1987 through 1989, he had increased levels of angry outbursts. In addition to working in the family-owned bicycle shop, he also delivered newspapers for the Boston Globe and occasionally required assistance from his family members. He had conflicts at home and work and his behavior was unpredictable and inconsistent. In 1990, he was no longer employed at the family-owned bicycle shop due to his confrontational behavior. In addition, he quit his second job delivering papers because of customer complaints about his conduct and angry outbursts. Reportedly, the Veteran's PTSD had worsened to the point that it affected his ability to work because he was confrontational and exhibited unpredictable and uncontrollable anger. In 1991 and 1992, the Veteran's ability to work was affected because he was confrontational and exhibited unpredictable and uncontrollable anger. In 1994, the Veteran worked part-time as an unarmed security guard for 2 companies but lost both jobs due to confrontations. From 1995 to 2006, the Veteran worked full-time performing assembly work in a protective environment. In 1995, he worked on an assembly line that required him to work side-by-side with Asian and Vietnamese workers. He was always on high alert around his Vietnamese co-workers. He had a series of threatening confrontations with his Vietnamese co-workers and was written up and transferred to an isolated work environment where he was sheltered and had little interaction with people and no interaction with the Vietnamese co-workers. His unpredictable, verbally abusive, antisocial behaviors continued. In 2006, his aggressive rage and angry behavior had escalated. In 2007, he took early retirement and severance pay to avoid having to work next to his Vietnamese co-workers. From 2008 to 2012, the Veteran worked part-time in security. The psychologist reported that Social Security records confirmed that the Veteran was never fully employed and indicate that he was not able to maintain gainful employment during much of his work career due to his PTSD. The psychologist concluded that there was a causal relationship between the Veteran's impaired functioning due to his PTSD and the ability to sustain gainful employment. The January 2016 VA medical opinion reflects that the occupational impact of the Veteran's PTSD described by the private psychologist and Veteran's wife was significantly contradicted by the Veteran's own report. The VA psychologist concluded, based on the totality of the evidence, that it was likely that the Veteran significantly underreported his PTSD symptoms during his VA examinations, especially their impact on his occupational functioning. The private psychologist provided evidence that the Veteran had serious difficulty maintaining employment unless he was provided an isolated environment with little or no interaction with others due to his severe irritability. He could not even maintain employment at his father's business. The VA psychologist concluded that the Veteran's PTSD would limit him to working in a completely isolated environment and he would need a very understanding supervisor who would help the Veteran avoid all potential conflict. Additionally, the Veteran would need to have a very flexible schedule because his PTSD symptoms would prevent him from consistent attendance at work. The Veteran's application for a TDIU rating received in April 2016 indicated that his disability affected full-time employment/last worked full-time April 1, 2007; He became too disabled to work on October 23, 2014. He had completed 4 years of college and had no further education or training. He reported that it was necessary for him to terminate employment because his left hand cancer residuals and PTSD made it impossible to function in his job. From August 2007 to October 23, 2014, he worked part-time, per diem as a Court officer for approximately 4 to 7.5 hours per day. His yearly wages from 2007 to 2014 were as follows: 2007: $3,220.00; 2008: $14,755.00; 2009: $14,248.06; 2010: $17,249.00; 2011: $16,814.86; 2012: $18,279.84; 2013: $19,556.66; and, 2014: $12, 454.65. In a May 2018 statement, the Veteran's wife reported that after they were married in 1981, the Veteran worked for the Polk County Sheriff's Department from 1981 to 1983 and was forced to resign due to his unprofessional conduct while on duty. Thereafter, he worked in his father's bicycle shop. Later, he worked at Gillette but his period of employment at Gillette was extremely stressful and difficult because he required an accommodated, "safe" work environment where he could protect himself and others from danger. He also had to avoid positions that had unexpected triggers that would prevent him from performing his job. His wife reported that the Veteran preferred to find a job that had maintained strict protocol rules and military-like procedures for protection. In 2008, the Veteran was hired by the New Hampshire Court system as a part-time, per diem employee who worked 7.5 hours per day, approximately 4 days per week. He monitored security cameras in a secured and isolated work area and performed other clerical duties; he had limited and indirect contact with the public. Reportedly, the Veteran's PTSD negatively affected his work performance and he was constantly verbally reprimanded for his performance and interactions with a Vietnamese co-worker. In 2009, the Veteran was diagnosed with cancer (that was subsequently service-connected) and his duties and work hours were reduced due to the multiple surgeries and hospitalizations needed to treat his cancer. Ultimately, his wife concluded that the Veteran was unable to continue working due to his increased PTSD and his declining physical health attributable to his cancer that prevented him from being able to perform the full scope of his work duties. In sum, the Veteran's wife asserted that he required a protected work environment and explained that he could only work in an "accommodating, safe work environment" and he was unable to work in jobs with unexpected triggers. She reported that contact with people made the Veteran feel agitated, very guarded, and he would have to leave his work area. Reportedly, he was constantly reprimanded for having to leave work after dealing with certain people and had been forced to take a mandatory, extended administrative leave of absence due to his confrontational interactions, irritability, and anger outbursts and name calling. In October 2020, the Court granted the parties' Joint Motion, vacated the August 2018 decision, and remanded the issue to the Board for additional development of the record. In particular, the parties agreed that the Board's statement of reasons and bases for its denial of a TDIU prior to October 24, 2014 was inadequate because the Board failed to consider recently submitted evidence. Specifically, the parties noted that the Veteran's wife had submitted a statement in May 2018 concerning the Veteran's inability to work; she asserted he required a protected work environment. His wife explained that the Veteran could only work in an "accommodating, safe work environment" and he was unable to work in jobs with unexpected triggers. Further his wife reported that contact with people made the Veteran feel agitated, very guarded, and he would have to leave his work area. Reportedly, he was constantly reprimanded for having to leave work after dealing with certain people and had been forced to take a mandatory, extended administrative leave of absence due to his confrontational interactions, irritability, and anger outbursts and name calling. Ultimately, in the October 2020 Joint Motion, the parties agreed that the Board erred when it did not discuss the evidence submitted in May 2018 in the context of its determination that the record did not indicate that the Veteran's work performance was affected by his service-connected posttraumatic stress disorder (PTSD), but rather only his ability to interact with others was affected by his PTSD and there was no indication that the Veteran's job duties required him to interact with others. Considering the parties' October 2020 Joint Motion, on this record, the Board finds that the evidence demonstrates that the Veteran's service-connected PTSD precluded him from realistically obtaining and maintaining any form of gainful employment, consistent with his work and education background, as of the date his disability affected full-time employment/last worked full-time (April 1, 2007). Prior to that time, the Veteran worked for Gillette Corporation and maintained gainful, full-time employment for approximately 12 years in the Quality Assurance department though the Board acknowledges his work was completed in an accommodating, safe work environment." However, these accommodations did not limit the Veteran's effectiveness at his job or result in lost earning capacity. To that end, the Board notes that Social Security earning records document that for this period of employment the Veteran earned between $31,000 and $50,000 per year. See Cantrell v. Shulkin, 28 Vet.App. 382, 396 (2017) (the amount of a claimant's income and specifically whether the claimant receives the same pay as similarly situated co-workers who are not disabled should be considered and if a claimant's disabilities do not result in lost income, then there is no loss of earning capacity and award of TDIU would not be appropriate). The Board is aware that the Veteran experienced other periods of unemployment prior to his 12-year tenure at Gillette Corporation. However, that the Veteran was unemployed or had difficulty obtaining employment is not a basis for an award of a TDIU. Rather, the standard is whether the service-connected disabilities preclude substantially gainful employment. The evidence of record does not indicate that the Veteran was precluded from substantially gainful employment due to his service-connected disabilities during his intermittent periods of unemployment prior to his 12-year tenure at Gillette Corporation. The record reflects that the Veteran worked in several different environment (family-owned bicycle shop, newspaper delivery, police department, private security). Thus, the Veteran is not entitled to a TDIU prior to April 1. 2007 (the date his disability affected full-time employment/date last worked full-time). However, the March 2014 VA PTSD examination report reflects the Veteran had been working per diem, intermittently for approximately 5 years doing security for the judicial system in New Hampshire and had last worked 3 months earlier. A June 2014 statement from a private psychologist reflects that his assessment was based on telephonic interview with the Veteran's wife. In pertinent part, his wife reported that the Veteran last worked full-time performing assembly work from 1995 to 2006 ("in a protective environment"). In 2006, his aggressive rage and angry behavior had escalated. In 2007, he took early retirement and severance pay to avoid having to work next to his Vietnamese co-workers. The January 2016 VA medical opinion documents the psychologist's conclusion that the Veteran's PTSD would limit him to working in a completely isolated environment and he would need a very understanding supervisor who would help the Veteran avoid all potential conflict and he needed a very flexible schedule because his PTSD symptoms would prevent him from consistent attendance at work. The Veteran's wife's May 2018 statement reflects that the Veteran's PTSD negatively affected his work performance and confirms that the Veteran required a "protected work environment" and he was unable to work in jobs with unexpected triggers. From 2007 to 2014, the Veteran's yearly wages were: 2007: $3,220.00; 2008: $14,755.00; 2009: $14,248.06; 2010: $17,249.00; 2011: $16,814.86; 2012: $18,279.84; 2013: $19,556.66; and, 2014: $12, 454.65. As the evidence demonstrates that the Veteran's disability affected full-time employment/he last worked full-time April 1, 2007 and his service-connected PTSD renders him unable to secure and engage in substantially gainful employment, assignment of a TDIU rating as of the date his disability affected full-time employment/last worked full-time is warranted. Accordingly, a TDIU rating effective April 1, 2007 is warranted. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson 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.