Citation Nr: 21070958
Decision Date: 11/29/21	Archive Date: 11/29/21

DOCKET NO. 15-32 136
DATE: November 29, 2021

ORDER

Entitlement to an evaluation of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with alcohol dependence prior to February 17, 2015 is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) from October 1, 2011 is granted.

FINDINGS OF FACT

1. Prior to February 17, 2015, the Veteran's PTSD with alcohol dependence resulted in occupational and social impairment with deficiencies in most areas.

2. From October 1, 2011, the Veteran was precluded from obtaining and maintaining substantially gainful employment as a result of his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an evaluation of 70 percent, but no higher, for PTSD with alcohol dependence prior to February 17, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411.

2. The criteria for entitlement to a TDIU from October 1, 2011 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from December 1966 to December 1969.

This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions dated March 2013 and June 2015 issued by Department of Veterans Affairs (VA) Regional Offices (RO). The Veteran timely appealed both decisions.

In April 2020, the Board denied a rating in excess of 50 percent for PTSD prior to February 16, 2015, a rating in excess of 70 percent for PTSD from February 17, 2015, and a TDIU prior to February 17, 2015. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the part of the April 2020 Board decision that denied a rating in excess of 50 percent for PTSD from prior to February 16, 2015 and a TDIU prior to February 17, 2015. The issues have now been returned to the Board for adjudication.

Tragically, the Veteran passed away in November 2020. The Appellant, his surviving spouse, has been substituted in the appeal.

Increased Ratings

A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The schedule for rating psychiatric disabilities, to include PTSD and other acquired psychiatric disorders, provide that a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126.

The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Upon review of the evidence, the Board finds that a staged rating is no longer necessary as the Veteran's symptoms most closely approximated a 70 percent disability rating under DC 9411 throughout the duration of the appeal period.

1. Entitlement to an evaluation of 70 percent, but no higher, for PTSD with alcohol dependence prior to February 17, 2015

The evidence shows that the Veteran's symptoms were consistent with a 70 percent rating prior to February 17, 2015, because they produced occupational and social impairment with deficiencies in most areas. The evidence preponderates against finding that the criteria for a rating higher than 70 percent for PTSD with alcohol dependence were met during this stage. The period on appeal begins on June 26, 2008, the date the Veteran was awarded service connection for this disability. The Board notes that from June 24, 2011 to September 30, 2011, from December 12, 2011 to February 28, 2012, and from May 15, 2013 to July 31, 2013, the Veteran was rated as 100 percent for PTSD with alcohol dependence. As the 100 percent rating is the maximum schedular benefit available, the Board will only discuss the appeal period from June 26, 2008 to June 23, 2011, from October 1, 2011 to December 11, 2011, from March 1, 2012 to May 14, 2013, and from August 1, 2013 to February 16, 2015.

In a September 2008 medical treatment record, the Veteran's therapist wrote,

I saw [the Veteran] in therapy from July 10, 2008 to August 8, 2008...Treatment focused on his depression and his ability to cope with stresses at work and with his marriage...He reported alcohol use, and it appeared that he may have been relying on that to alleviate stress and anxieties...He did report suicide ideation in the past and at least one planned attempt interrupted by his son walking in on him before he could actually make the attempt. He denied active suicide ideation or intentions at the time of these sessions.

In a November 2008 lay statement, the Veteran's sister noted that the Veteran came back from service "a drastically changed man." She noted that due to the stress and memories of Vietnam, he lost his marriage, family, and business. He struggled with flashbacks of the war and what he went through while he was there. She wrote, "It has been the major cause of him losing his health and having lots of depression."

In a November 2008 lay statement from the Veteran's uncle he provided, "I have come to notice that he is getting more depressed as time goes by. He has flashbacks to Vietnam a lot and it interferes with his work, family life, and happiness."

In a February 2009 VA examination for PTSD, the Veteran stated that he was fired from at least one job because of his anger and possibly more although, he was a poor historian and vague, so that information was difficult to ascertain. He was currently employed. He was able to function well there because he had his own office and no one bothered him and he did not have to interact with people. He had three children but had not seen them since his divorce. He saw his son on a very limited basis and appeared to have some contact with him but not much emotionally meaningful contact. He stated the marriage ended because of his anger and drinking. He was married a second time which ended for the same issues. He was married a third time and they had been together for 10 or 11 years. He stated that the marriage was fair. He stated there continued to be issues regarding alcohol and anger as well as him isolating himself. He attempted suicide twice. At the time, he was very nervous and anxious as well as upset. He appeared to be holding tears in. He was red-faced and his voice shook. His thought processes were clear, logical and goal-directed. He did not have hallucinations or delusions. He had passive suicidal ideation without current intent or plan. He had no homicidal thoughts. He was fully oriented. He did not have obsessive or ritualistic behavior which interfered with routine activities. His speech was normal. He did not have panic attacks. Specific PTSD symptoms included irritability, poor sleep, and nightmares. In addition, he had pervasively sad mood, anhedonia, feelings of helplessness, hopelessness, worthlessness and guilt, and difficulty sleeping with initial insomnia. The examiner concluded that the Veteran had depressive signs and symptoms that resulted in deficiencies in most of the following areas, work, family relations, thinking and mood. He was unemployed, he had chronic difficulty holding onto a job, he had minimal family relationships as well as social or recreational outlets and he had a chronically sad mood.

In medical treatment records ranging from March 2009 through September 2012, the Veteran was dressed and groomed appropriately with good hygiene. He was alert and fully oriented. Often, the Veteran's mood was noted as anxious and depressed and his affect was congruent. Other times, he had calm and euthymic affect of full range. His speech was normal and thoughts were coherent, logical and goal-directed. He did not experience hallucinations or delusions. He reported problems with chronic passive, and sometimes active, suicidal ideation but no intent or plan. One treatment record noted that he had thoughts of wanting to die with no specific plan that he would reveal but felt at times that it was not worth living with the ongoing PTSD symptomatology. He stated, "Why would I tell you what I will do to kill myself, there are ways, you think if you put me in the hospital I can't do it." See Medical Treatment Record dated July 2010. He did not have homicidal ideation. His memory was intact. His sleep was poor and was only reported as good when he drank every day. One treatment record noted that he had poor impulse control and judgment. All other treatment records noted good or unimpaired insight and judgment. Other symptoms included poor interest, energy, and concentration, feeling hopeless, preferring to be alone, nightmares, vivid, unwanted memories, relationship problems, anger/irritability, and substance abuse.

In an August 2012 lay statement, the Appellant wrote,

During our marriage [he] has struggled with depression and alcohol abuse. [He] does not trust anyone. He is very suspicious of everyone. He becomes angry and verbally abusive when another male speaks to me. He is a loner and has no friends so consequently I am the only person he has to spend time with. He has siblings but they do not socialize or seek him out. [He] struggles with nightmares and therefore does not sleep, tossing and turning, kicking all night. When he doesn't sleep at night he is very short tempered and anything minor will set him off. He experiences memory loss forgetting he has spoken to someone or has already shared information, forgets where he puts things and when reminded of such he becomes angry. [He] becomes very aggressive when depressed. I fear for his safety when he confronts others for something so minor as no turn signal when driving. I have seen him get progressively worse since I first met him. He goes through periods when he does not even want to be around me and lashes out at me for any reason. He neglects his personal grooming and does not shave, bathe or change clothes. If I address this he becomes angry.

In an October 2012 PTSD examination, the Veteran had occupational and social impairment with reduced reliability and productivity. At the time, the Veteran had been married for about 13 years. He said he was not in touch with his children. His current marriage was fair. He was currently unemployed, and he said he quit working due to memory/concentration problems and physical issues. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. He reported depressed mood with poor sleep, energy, appetite, and interest, and avoiding crowds. He had no friends and did not socialize. The examiner noted that the divorces and work problems were from his PTSD and ETOH abuse. The Veteran said he had a pattern of troubled family relations due to his PTSD.

In medical treatment records ranging from February 2013 through April 2013, the Veteran was fully oriented. He reported passive suicidal thoughts but no active thoughts. In February 2013, he reported a vague hallucinatory experience, which was PTSD based. He reported a tendency to socially isolate, and also anger outbursts, but denied physical violence. He noted that his mood was improving, but that if things did not go as expected, he got angry and irritable for a couple of hours. He had poor sleep.

In a May 2013 lay statement, a friend of the Veteran's who attended a PTSD group with him noted that the Veteran dealt with nightmares, feelings of guilt, and isolation.

In a May 2013 lay statement, the Appellant wrote,

He has nightmares and flashbacks stemming from his experiences during the war. These have been getting progressively worse to the extent that I am now sleeping in different bedrooms. [He] lashes out in his sleep and has punched me numerous times. [He] has trouble sleeping due to PTSD. [He] is a loner. He has no friends due to his inability to trust. He does not socialize at all. The only times he leaves the house is when he has medical appointments. He has four half sisters whom he has no contact with as he prefers to isolate himself from all family also. Since [he] does not leave the house his personal hygiene is deteriorating. I have to remind or nag him to bathe/shave/etc.

In medical treatment records ranging from April 2014 through November 2014, the Veteran was well groomed and well dressed. He had normal speech. His mood was dysphoric and affect was appropriate with full range. It was also noted that his mood had been aggravated and irritable, and that he had calm and euthymic affect of full range. His thought process was goal directed and linear. He denied hallucinations and there was no evidence of delusions. He denied suicidal and homicidal ideation, intent, or plan. His insight and judgment were good and his memory was unimpaired. He reported that his relationship with his wife had been adversely affected by his inability to perform certain physical tasks. He noted that he did not have any family or friends to provide support and he was estranged from his family. He described himself as primarily socially isolated.

In a November 2014 statement, the Veteran wrote, "There has been obsessive, ritualistic behavior which has interfered with my routine activities. There has been panic attacks, and situations associated with my trauma."

In a December 2014 lay statement, the Appellant wrote,

He has problems sleeping and spends hours walking around looking out the windows as if checking or guarding our house. He has severe mood swings and goes from being calm and then angry in short periods of time. [He] loses his temper quickly. He suffers from depression and has no friends. [He] does not socialize with his family or mine. We seldom socialize with anyone outside of our family. [He] does not have any friends and does not trust anyone. [He] is very negative about life in general. [He] prefers to stay home and isolate himself from everyone including myself.

In an August 2021 Appellate Brief, the Appellant's representative wrote,

The evidence of record shows that prior to February 16, 2015, [he] experienced symptoms that, collectively, are consistent with a rating of 100 percent...Those symptoms include suicidal ideation, inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances (including work or a work-like setting), and other symptomatology consistent with a higher rating... Consistent with the Court's finding in Bankhead, [his] record of active suicidal ideation and past suicide attempts prior to February 16, 2015 demonstrate a persistent danger of hurting oneself consistent with a 100 percent disability rating ... Treatment records dated prior to February 16, 2015 reflect that [his] PTSD was manifested by episodes of anger, nightmares, and social isolation. Most notably, [his] PTSD took a significant toll on his personal relationships. In 2010, his examiner noted that [he] discussed how his PTSD caused him to lose his children and his marriage. As a result, [he] has not seen his three children since 1984. [He] admitted to considerable social isolation, including from his wife, and not interacting socially. His wife...attested to his trouble sleeping, severe mood swings, irritability, depression, and isolation. She stated that [he] had no friends and that they hardly ever socialized anymore. She noted that [he] preferred to stay home and isolate himself from everyone, including her...[His] PTSD symptoms manifested in such a way as to cause total occupational and social impairment, rendering him unable to work due to anger and memory issues, and causing him to isolate himself from family and friends.

As discussed above, the Veteran reported both active and passive suicidal ideation on numerous occasions in his treatment records, and subsequent treatment records document an increase in frequency of such reports. Furthermore, the extensive opinions of the February 2009, October 2012, April 2015, and September 2015 examiners describing the Veteran's symptoms, which include suicidal ideation; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships, the Board finds that the Veteran's condition most closely showed occupational and social impairment with deficiencies in most areas. There were also reports of obsessional rituals which interfere with routine activities, near-continuous panic affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), and neglect of personal appearance and hygiene from the Veteran and his family and friends throughout the entirety of the appeal period.

The Veteran did not demonstrate symptoms of the frequency, severity, or duration consistent with a 100 percent rating prior to February 16, 2015. Specifically, there is no evidence which documents a gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). On the contrary, numerous treatment records during the appeal period report he was fully oriented, behaved appropriately, and did not have memory loss for names of close relatives, own occupation, or own name, or intermittent inability to perform activities of daily living.

Although the Veteran reported a vague PTSD-based hallucinatory experience in February 2013, the Board finds that it does not rise to the level of persistent delusions or hallucinations consistent with a 100 percent rating. Rather, the Veteran only reported this occurrence once during the appeal period. Additionally, in numerous examinations and treatment records during the appeal period, the Veteran consistently denied experiencing delusions or hallucinations. Thus, this one-time report does not warrant a higher 100 percent rating.

In the August 2021 Appellate Brief, the Appellant's representative made several arguments about why the Veteran's psychiatric symptoms warranted a 100 percent rating. The Appellant's representative contended that the Veteran had total social impairment because he had no friends, hardly ever socialized, and he isolated himself from everyone, including the Appellant. However, the Board notes that the current 70 percent rating is sufficient to contemplate the fact that he was only able to maintain one relationship during this period. The criteria for the currently assigned 70 percent rating contemplate social impairment of being unable to establish and maintain relationships. In this case, the Veteran was not totally socially impaired as he did maintain a long-term marriage of 19 years until his death.

Additionally, in the August 2021 Appellate Brief, the Appellant's representative contended that the Veteran's passive and active suicidal ideation demonstrated a persistent danger of hurting oneself consistent with a 100 percent rating. While the Veteran did experience suicidal ideation during the appeal period, the currently assigned 70 percent rating contemplates suicidal ideation that causes deficiencies in most areas. During this stage, there were also treatment records in which the Veteran denied suicidal ideation. While the Board recognizes the gravity of the Veteran's past suicide attempts, they took place prior to the period on appeal, and therefore are not the best representation of the severity, frequency, and duration of this symptom during the period being evaluated by the Board. Instead, the medical and lay evidence during the period on appeal showed suicidal ideation causing deficiencies in most areas, but not producing persistent danger to self or total social impairment.

The Veteran's occupational impairment from October 1, 2011 is discussed at length in the TDIU section below. In order to warrant a 100 percent rating, a veteran must be totally occupationally and socially impaired. The Board does not find the total social impairment necessary for a 100 percent rating was present during the appeal period. While the Veteran's psychiatric disorder interfered in his social relationships, a significant deficit in social functioning is reflected in the assignment of a 70 percent evaluation. During this period the Veteran maintained a relationship with the Appellant. This evidence preponderates against finding total social impairment. As there is no indication that the Veteran's PTSD with alcohol dependence rendered him totally socially impaired, the Board does not find that a 100 percent rating is warranted.

Based on the foregoing, prior to February 17, 2015, a 70 percent rating, but no more, for PTSD with alcohol dependence is granted.

2. Entitlement to a TDIU from October 1, 2011

A TDIU may be assigned 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 their service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated as at least 60-percent disabling, and if there are two or more disabilities, at least one disability must be rated as at least 40-percent disabling and there must be sufficient additional disability to bring the combined rating to at least 70 percent. Id.

Incorporating the grant in this decision, service connection is currently in effect for PTSD with alcohol dependence at 70 percent disabling from June 26, 2008 to June 23, 2011, from October 1, 2011 to December 11, 2011, from March 1, 2012 to May 14, 2013, and from August 1, 2013 to the present. Thus, the Veteran had at one disability rated as at least 60 percent disabling during these stages. The Board notes that the Veteran had a 100 percent schedular rating for his psychiatric disability from December 12, 2011 to February 28, 2012, and from May 15, 2013 to July 31, 2013. Thus, entitlement to a TDIU is not available during these stages because the schedular rating is total.

Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. While the regulations do not provide a definition of "substantially gainful employment," in Faust v. West, 13 Vet. App. 342 (2000), the Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation "that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income."

Requiring a Veteran to prove that he is totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. 38 C.F.R. § 4.16(b). However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's 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 keep 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.

Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993).

Following a thorough review of the evidence, the Board finds the competent and credible evidence of record supports an award of a TDIU from October 1, 2011. The Board notes that the Veteran was granted entitlement to a TDIU from February 17, 2015; therefore, the Board's analysis will focus on whether the Veteran was entitled to a TDIU for the periods prior to February 17, 2015.

In his October 2012 PTSD examination, the examiner wrote, "Has held carpentry jobs since leaving military; fired several times for [drinking]; currently unemployed but worked...for four years (worked nights) till last year; says he quit working due to memory/concentration problems and physical issues."

In the Application for Increased Compensation Based on Unemployability dated July 2013, the Veteran stated that he sought entitlement to TDIU due to symptoms of his PTSD. The highest level of education the Veteran had was a high school degree. He wrote that the last time he worked full time was in 2010, the same date he became too disabled to work.

In an April 2014 Request for Employment Information, the Veteran noted the last date he worked was June 23, 2011.

In the Application for Increased Compensation Based on Unemployability dated November 2014, the Veteran again stated that he sought entitlement to TDIU due to symptoms of his PTSD. He wrote that the last time he worked full time was in June 2010. The date he became too disabled to work was in October 2011.

In a November 2014 lay statement, the Veteran's friend wrote,

I have witnessed how his conditions from his service-connected disability prevents him from securing or following any substantially gainful occupation too disabled to work year 2011. His conditions have been, and have affected his well-being for securing him from substantially gainful occupation. Keeping a job or finishing an important task, showing rapid and major shifts in moods swings, acting cold and rage and anger[,] having anxiety, agitation, sleeplessness for no apparent reason, problems hand[l]ing feelings and emotions, having strange thoughts, and isolating himself, withdrawing from family and friends. Self-destructive behavior...All this has [a]ffected his job performance... [He] shows very miserable because of his psychiatric problems in his life.

In an August 2021 Appellate Brief, the Appellant's representative provided,

The Veteran's service-connected PTSD prevented him from being able to maintain substantially gainful employment after 2011, due to anger and memory issues...The combination of PTSD symptoms [he] experienced, including isolation, anger, and memory issues, directly relate to an ability to work, and prevented [him] from substantially gainful employment prior to February 17, 2015. After leaving the military, [he] held approximately 27 jobs, and lost a number of those jobs due to anger issues and drinking. After discontinuing his work in construction, he worked...from 2007 to 2011, until a combination of physical and mental issues required him to quit...In addition to his PTSD symptoms and medical limitations, the Board must also consider that [he] joined the Army after only completing the eleventh grade, and later received his GED while he was in service...[The Veteran] noted that his job skills were limited to construction and managerial skills, as well as a basic ability to read and write. Further...[his] memory and concentration issues prevented him from continuing his employment...after 2011. [His] high school education significantly curtailed his ability to meet the economic requirements of substantially gainful employment...The Board should therefore grant TDIU because the effects of [his] service-connected disability prevented him from being able to secure substantially gainful employment after 2011.

The disability rating in effect during the appeal period of 70 percent reflects occupational impairment due to his service-connected psychiatric disability.

Regulations place responsibility for the ultimate TDIU determination on the Board and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds the opinion of the October 2012 examiner and the competent and credible lay statements are both persuasive and probative evidence that the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected psychiatric disability.

The Veteran reported in his first Form 21-8940 that the last date he worked full time was in 2010. In his second Form 21-8940, the Veteran reported that the last date he worked full time was in June 2011. In an August 2021 brief the Appellant's attorney also argued that the Veteran had not worked since 2011. However, as the Veteran had a 100 percent rating for his service-connected PTSD from June 24, 2011 to September 30, 2011, entitlement to a TDIU is not available during this stage because the schedular rating is total. Thus, the earliest date the Appellant can be granted a TDIU is October 1, 2011. Additionally, as noted above, because the Veteran had a 100 percent rating for his service-connected PTSD from December 12, 2011 to February 28, 2011 and from May 15, 2013 to July 31, 2013, entitlement to a TDIU is not available during these stages because the schedular rating is total during these periods.

Based on the totality of the Veteran's service-connected disabilities, the Board finds the evidence establishes that his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment from October 1, 2011. A TDIU is granted from that date. 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Minock

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.