Citation Nr: 21072866 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-27 002 DATE: December 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT The Veteran's service-connected disabilities precluded him from securing and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to October 1969, and a period of active duty for training (ACDUTRA) from July 1966 to December 1966. The appellant is the Veteran's surviving spouse. She has been properly substituted into the Veteran's pending appeal seeking entitlement to TDIU. The matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to TDIU VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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: Provided, that, 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 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. Here, throughout the period on appeal prior to the Veteran's death, the Veteran met the schedular requirements for a TDIU rating as his other specified anxiety disorder (claimed as anxiety-depressive condition) was 70 percent disabling, and his arrhythmia/irregular heartbeat was 30 percent disabling. The Board acknowledges that in a September 2015 rating decision, the RO proposed to sever service connection for arrhythmia/irregular heartbeat. Additionally, in a March 2017 rating decision, the RO proposed to decrease the rating for service-connected other specified anxiety disorder from 70 percent disabling to 30 percent. However, these rating actions were not finalized prior to the Veteran's death. Although these actions were technically pending at the time of the Veteran's death, the effective dates of final actions severing service connection or reducing a rating will be effective "the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires." 38 C.F.R. § 3.105. As such, since the law provides that any severance or reduction implemented after the Veteran's death could only be effective after death, the proposed severance and reduction actions essentially became moot since they were not finalized prior to the Veteran's death. Thus, at the time of his death, the Veteran continued to be service connected for other specified anxiety disorder, with a 70 percent evaluation and arrhythmia/irregular heartbeat with a 30 percent rating and he met the schedular criteria for TDIU. The central inquiry in a claim for TDIU 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). In this case, for the reasons discussed below, the Board finds that the evidence of record supports a finding that the Veteran's service-connected disabilities were of sufficient severity to render him unable to follow a substantially gainful occupation. On November 2014 VA examination for the Veteran's service-connected heart condition, the examiner noted that the Veteran had supraventricular tachycardia with more than four episodes in the last 12 months. The examiner indicated that the Veteran's heart condition did impact his ability to work. The examiner noted that the Veteran had not worked since 2000 after he had a three-level spinal fusion. He noted that the Veteran did get shortness of breath with heart-related episodes, but they were intermittent, and he was asymptomatic during stress testing. In June 2015 VA Forms 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he had last worked full time in 2000 as an electrician and that he left because of his service-connected psychiatric disorder and his nonservice-connected spinal fusion. He indicated that he had not attempted to obtain employment since that time until 2015, wherein he attempted to start a business in aerial photography and needed his pilot's license. He reported that he needed to renew his airman's certificate for the pilot license, which required a flight physical. However, he indicated that he was denied the airman's certificate due to his current medications Clonazepam and Sertraline, for the treatment of anxiety/depression. He also reported that his medications for his service-connected heart condition affected his ability to work. An October 2015 VA treatment note from the Veteran's psychiatrist, Dr. M.T., states that the Veteran had failed a medical exam and was thereby ineligible to maintain his pilot license. She noted that the Veteran explained that failing the test affected his ability to obtain employment and/or start a business relating to this as he needed an active pilot's license. Dr. M.T. noted that the Veteran's chronic anxiety symptoms had impacted his ability to obtain employment and that his pervasive obsessive-compulsive disorder (OCD) symptoms had rendered him unemployable. In January 2016, Dr. M.T. submitted a Disability Benefits Questionnaire (DBQ) dated in October 2014 that diagnosed the Veteran with anxiety disorder and OCD. She indicated that the Veteran had problems relating to the social environment and had limited primary support. The provider also reported depressed mood, anxiety, panic attacks more than once a week, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and obsessional rituals which interfere with routine activities. On December 2016 VA examination, the VA examiner provided a diagnosis of other specified anxiety disorder. The December 2016 VA examiner also reported 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 examiner further stated that regarding the Veteran's usual occupational and daily activities, his ability to understand and follow instructions was not impaired; his ability to retain instructions as well as sustain concentration to perform simple tasks was not impaired; his ability to sustain concentration to task persistence and pace was not impaired; his ability to respond appropriately to coworkers, supervisors, or the general public was mildly impaired; and his ability to respond appropriately to changes in the work setting was mildly impaired. The examiner also noted that the Veteran's anxiety and rumination about his not being deployed to Vietnam had mild impact on his ability to work. Additionally, his anxiety resulted in mild impairment in social situations and dealing with workplace change when these situations and changes overlap with his ruminations and anxiety. The examiner noted the contrasting opinion from Dr. M.T. regarding the Veteran's ability to be employed and indicated that the difference of opinion "appears to be whether veteran is being assessed for employment in the range of jobs he may be qualified for or if he is being assessed for employment as a pilot." Examples of jobs in the full range include returning to the type of work that the Veteran did for many years as an electrician. The examiner added that employment as a pilot has an understandably greater focus on the potential for medications interfering with performance and that the evidence is more consistent with the Veteran having greater employability when a full range of professions were considered. A January 2017 letter from the Veteran's treating provider, Dr. M.T., states that she had been treating the Veteran since March 2014. She reported that the Veteran had persistent severe symptoms of compulsive behaviors and obsessive thinking that had been refractory to medication and individual therapy and that "these overwhelming symptoms of anxiety have also manifested in the form of depression." She opined that "there is a clear impact on the Veteran's ability to obtain employment due to chronic anxiety symptoms and the, pervasive symptoms of OCD render him unemployable." See Medical Treatment Record Government Facility received in June 2017. In evaluating the evidence to determine whether the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment, the Board places equal weight of probative value on the December 2016 VA examiner's opinion and on the January 2017 letter from the Veteran's treating provider regarding the functional impact of the Veteran's psychiatric disorder. Although they reach different conclusions regarding the impact of the Veteran's psychiatric disorder, these opinions both reflect examination of the Veteran and consideration of his symptoms and medical history. The January 2017 letter from Dr. M.T. is based on her treatment of the Veteran since March 2014. Both opinions provide clear rationales for the conclusions reached and reflect consideration of the impact of the Veteran's disabilities on any form of employment. Further, the DBQ and treatment records from Dr. M.T. reflect that the Veteran had problems in relating to the social environment. The Veteran had spent his career as an electrician, which requires some interaction with other people. Dr. M.T. also found that the Veteran's depressed mood, anxiety, panic attacks, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work, and obsessional rituals which interfere with routine activities would impair his employment in any setting. Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities rendered him unable to obtain or follow a substantially gainful occupation. As such, the Board resolves the benefit of the doubt in favor of the appellant, and entitlement to TDIU is granted. Mary Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brooks, Jasmine 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.