Citation Nr: 21074194 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-07 104 DATE: December 14, 2021 ORDER From February 7, 2017, entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the laws and regulations governing the payment of monetary benefit. FINDING OF FACT From February 7, 2017, the Veteran's service-connected disability precludes substantially gainful employment. CONCLUSION OF LAW From February 7, 2017, the criteria for entitlement to a TDIU are 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 FINDING AND CONCLUSION The Veteran served on active duty from March 1960 to March 1964. This matter comes before the Board of Veterans' Appeals from the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Entitlement to a TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). VA regulations provide that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). 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); see also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A VA Form 21-0966 (Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC) was received on February 7, 2017. A VA Form 21-526EZ (Application for Disability Compensation and Related Benefits) was received on June 10, 2017 in which the Veteran requested service connection for PTSD and individual unemployability; a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) was also received that date. In a March 2018 rating decision service connection for PTSD was granted effective February 7, 2017 and entitlement to a TDIU was denied. The Veteran properly appealed the TDIU denial giving rise to the instant appeal. Here, the Veteran has been awarded service connection for posttraumatic stress disorder (PTSD), rated as 70 percent disabling from February 7, 2017. This is his sole service-connected disability. Thus, the Veteran's disability rating meets the threshold schedular criteria for eligibility for a TDIU from February 7, 2017. On his June 2017 application for increased compensation based on unemployability, the Veteran reported that he did not finish high school and did not obtain any other education or training. He noted that he last worked full-time in 1995 as a tire builder. He reported that he rarely missed any time due to his service-connected PTSD. He stated that his PTSD symptoms are currently worse and prevent him from working today. In March 2018, the Veteran underwent a VA examination for PTSD. The VA examiner found that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The Veteran reported having many jobs after separation from active service due to alcohol and drug abuse. His job history reflected a pattern of attendance inconsistency and difficulty with those in authority. At least once, he reportedly challenged a young supervisor to a fight when his work performance was critiqued. He stopped working full-time in 1995 due to an on-job back injury. He collected Social Security Administration (SSA) benefits from 1998. In 2001, the Veteran took over his grandson's paper route and maintained it for 14 years. His PTSD symptoms included: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic and depression, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, circumstantial or stereotyped speech, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, including work and worklike settings, obsessional rituals which interfere with routine activities, impaired impulse control, and neglect of personal appearance and hygiene. The examiner found that the Veteran's PTSD symptoms severely impacted his ability to work cooperatively and effectively with supervisors and the public. Also, his symptoms moderately impacted his ability to follow instruction, severely impacted his ability to retain instructions and communicate effectively in writing, and mildly impaired his ability to solve technical or mechanical problems. Further, his symptoms moderately impaired the Veteran's ability to work a regular schedule without excessive absences and maintain task persistence and pace. An October 2018 VA psychiatry note indicated that the Veteran had difficulty with his supervisors when he was working and that his temper with supervisors often had him close to being terminated. The Veteran was diagnosed with PTSD per DSM-5. The Veteran avoided social situations. He tried to go to a sporting event but left as the crowd "freaked him out." The VA psychiatrist found that the Veteran "would experience increased PTSD symptoms if he were to try to work full-time and have to manage work stress." In November 2018, the Veteran stated that he wished to work again; however, his PTSD symptoms prevented him from being around others. He noted difficulty controlling his temper and accepting orders from others. His PTSD medication causes memory difficulties. In a January 2019 statement, the Veteran stated that he increased his in-person counselling for PTSD and increased his medication to decrease his PTSD symptomatology. However, his medication decreased his ability to focus, concentrate on tasks, or remember conversations. Based on the above, considering her educational and occupational background with his service-connected PTSD, the Board finds credible the Veteran's testimony that his service-connected PTSD has precluded employment. In viewing the medical evidence of record, as well as the statements by the Veteran, the Board finds the evidence in its totality shows that employment is precluded due to the Veteran's PTSD symptoms. The evidence reflects that the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic and depression, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, circumstantial or stereotyped speech, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, including work and worklike settings, obsessional rituals which interfere with routine activities, impaired impulse control, and neglect of personal appearance and hygiene. The evidence reflects that the Veteran's PTSD symptoms have worsened since he last worked full-time in 1995 and that the Veteran would experience increased PTSD symptoms if he were to try to work full-time and have to manage work stress. The March 2018 VA examiner noted that the Veteran would have severe difficulty working among the general public due to his PTSD symptomatology, specifically due to his angry outbursts and difficulty in adapting to stressful circumstances, including work and worklike settings. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. Accordingly, the Board finds that effective February 7, 2017, the effective date of the award of service connection for PTSD, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.