Citation Nr: 21072449 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-20 970 DATE: December 3, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) from November 30, 2010, to August 13, 2018, is granted. REMANDED Entitlement to an initial rating in excess of 70 percent for a social phobia (acquired psychiatric disorder) is remanded. FINDING OF FACT The Veteran's service-connected acquired psychiatric disorder precluded substantial gainful employment from November 30, 2010, to August 13, 2018. CONCLUSION OF LAW The criteria for a TDIU have been met from November 30, 2010, to August 13, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from February 1969 to February 1971. An October 2018 rating decision granted the Veteran a TDIU effective from August 13, 2018. In November 2021 the Veteran testified at a hearing before the undersigned. A transcript of that hearing has been associated with the claims file. Initially, the Board finds that the record raised a claim for a TDIU at all times since the Veteran filed his claim for an acquired psychiatric disorder on November 30, 2010. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board find that it also has jurisdiction over a claim for a TDIU at all times from November 30, 2010, to August 13, 2018. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); AB v. Brown, 6 Vet. App. 35 (1993). The TDIU Claim As noted above, the record shows that a claim for a TDIU has been pending at all times since the Veteran filed his claim for an acquired psychiatric disorder on November 30, 2010. See Rice, supra. In this regard, the Board notes that a total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record shows that the Veteran is service-connected for the following disability: An acquired psychiatric disorder rated as 70 percent disabling from November 30, 2010. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) during the pendency of the appeal because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher at all times from November 30, 2010, to August 13, 2018. The next question for the Board to consider is when, if ever, his service-connected disability rendered him incapable of substantial gainful employment from November 30, 2010, to August 13, 2018. 38 C.F.R. § 4.16(a). In this regard, the Veteran's VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in August 2018, reported that he had not worked full-time and became too disabled to work full time in 1985 because of his service-connected acquired psychiatric disorder. As to his work history, the Veteran reported that from the 1970's to 1985 he worked as a fork truck driver. Additionally, the Veteran testified that his post-service employment had been exclusively working in warehouses. As to his education, the Veteran reported that he had 4-years of high school. The Board also notes that the Veteran testified that since 2010 he had lived at the Soldiers' Home, an assistive living community, the facility caregivers have managed all aspects of his living since that time, and he cannot leave the facility without having significant problems with anxiety, panic attacks, and paranoia. As to the Veteran's being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment in driving a fork truck in warehouse as well as other possible employment that could make use of his work experience and 4-years of high school, the Board finds that the medical records show that the problems caused by his service-connected acquired psychiatric disorder adversely impacted his ability to work in any field from November 30, 2010, to August 13, 2018, because of the overall impairment it had to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers, and carry out the tasks required by employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected acquired psychiatric disorder would have made it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments from November 30, 2010, to August 13, 2018. Id. Similarly, the Board finds that that the acquired psychiatric disorder would have made it very difficult to work for the first time in most sedentary employments from November 30, 2010, to August 13, 2018, because of the problems that it would have caused interacting with his co-workers and customers and carry out the duties required by such employment as well as to learn the new skills needed for sedentary employment. Id. Given the above, the Board finds that the Veteran's service-connected acquired psychiatric disorder prevented him from securing or following a "substantially gainful" occupation from November 30, 2010, to August 13, 2018, given his prior vocational history, work experience, and the impact it would have had on obtaining and maintaining substantially gainful sedentary employment for the first time and non-sedentary employment, including in his past employment as a fork lift driver, because of the problems it would have caused in any work environment. Further development of this issue is simply not warranted in light of the history of this case. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected acquired psychiatric disorder rendered him incapable of substantial gainful employment from November 30, 2010, to August 13, 2018, given his prior vocational history, work experience, and the impact his service-connected disability had on all employment and the claim for a TDIU is granted from November 30, 2010, to August 13, 2018. See 38 C.F.R. § 4.16(a). REASONS FOR REMAND Initially, the Board notes that the above decision, in substance, grants the Veteran a TDIU (a 100% rating) at all times from November 30, 2010. Therefore, while the below issue is in Remand, status the Veteran, after consultation with his representative, may wish to consider withdrawing the claim below. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder is remanded. As to the claim for a rating in excess of 70 percent for the acquired psychiatric disorder, the Board finds that the Veteran's personal hearing testimony shows that his adverse psychiatric symptomatology may have worsened since his last VA examination in August 2018. Therefore, the Board finds that a Remand is needed to provide the Veteran with a new VA examination. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). While this issue is in Remand status, any outstanding VA and private treatment records, including from the Soldiers' Home, should also be obtained and associate with the record. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. After obtaining all needed authorizations from the Veteran, associate with the claims file all outstanding private treatment records including from the Soldiers' Home since 2010. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 2. Obtain and associate with the claims file any outstanding VA treatment records (if any). 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his acquired psychiatric disorder. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to identify all pathology found to be present. In providing the opinions, the examiner should consider the Veteran's competent lay claims regarding observable symptomatology. In providing the opinions, the examiner should consider and discuss the significance, if any, of the Veteran living at the Soldiers' Home since 2010. (Continued on the next page) The examination report must include a complete rationale for all opinions expressed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.