Citation Nr: 21075412 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-49 938 DATE: December 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 11, 2020 is granted. FINDING OF FACT Prior to February 11, 2020, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1982 to April 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in February 2020. A transcript of the hearing is associated with the claims file. This matter was remanded most recently in March 2021 for agency of original jurisdiction (AOJ) consideration of records obtained after the October 2020 Supplemental Statement of the Case (SSOC) was issued. An updated SSOC was provided in July 2021; as such, the Board may proceed to the merits of the case. See Stegall v. West, 11 Vet. App. 268, 271 (1998) As noted in prior remands, the Board found the Veteran's TDIU claim part and parcel of increased rating claims previously on appeal per Rice. See Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). The Veteran contends that his service-connected disabilities render him unable to obtain or maintain substantially gainful employment. VA will grant TDIU benefits when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU 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 service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities resulting from a common etiology or from a single accident are considered one disability. 38 C.F.R. § 4.16(a). The Veteran's combined rating has been 80 percent throughout the appeal period, with his PTSD rated at 70 percent. Accordingly, he satisfies the schedular criteria for a TDIU for the entire period on appeal. His other service-connected disabilities include bilateral plantar fasciitis and pes cavus. The Board has considered whether the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. A substantially gainful occupation is "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." Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." Id. Whether the veteran can find employment is not determinative; the focus of the inquiry is on "whether the veteran is capable of performing the physical and mental acts required by employment." See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the U.S. Court of Appeals for Veterans Claims (Court) interpreted and defined the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16 to encompass two components: one economic and one noneconomic. Ray, 31 Vet. App. 58, 72 (2019). The Court held the economic component "simply means 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." Id. at 73. Regarding the noneconomic component, the Court provided guidance "as to the meaning of a veteran's ability to 'secure and follow' such employment." Id. The Court held that attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See id. The Court noted that this is not "a checklist that must be run through in every case;" rather, "discussion of any factor is only necessary if the evidence raises it." Id. The Veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in December 2018. He reported no work in the five years prior, but noted that he worked for C.H. from November 2000 to June 2002 and another company ("I.") from August 2002 to February 2003 and from August 2004 to January 2006. Following outreach by VA, a representative from I. indicated that the Veteran had not worked there since February 2006, but was unable to provide any further details on time lost due to disability and the nature of the Veteran's termination of employment. The Veteran indicated that he tried to work for Home Depot, Walmart, and Lowes since becoming too disabled to work, but could not remember when he applied to work for these employers. At an October 2016 VA mental health visit, he reported working in a variety of jobs, including as a mechanical electrical designer, general contractor, realtor, auto mechanic, senior business analyst, salesman, loan officer, lawyer, and in other self-employment ventures, such as running an internet business with his wife. At a July 2017 VA examination, he reported that he had to give up his job as a ski instructor due to his foot disabilities. Per a Social Security Statement provided by the Veteran in October 2020, he has had no taxed Social Security or Medicare earnings since 2009 and was found to be disabled by SSA on March 1, 2007. As for educational history, the Veteran reported that he completed four years of college and attended law school from August 1987 to May 1990. At a November 2016 VA mental health visit, his provider documented that he had an associate's degree in computer science, a bachelor's degree in occupational education, a master's of business administration (MBA), and a juris doctor (JD). The Board notes that the Veteran has not reported having an MBA in any other instance. There are some indications in the Veteran's treatment records that he has "worked" during the appeal period. Specifically, he reported working in his temple, running an internet business with his wife, being unable to partake in aquatherapy due to his demanding work schedule, and spending 16 days out of a 30-day period "at work, school, or doing volunteer work." See, generally, VA Treatment Records from November 2016 to March 2019. The Board notes, though, that the Veteran's work with his temple appears to be entirely volunteer-based, and, to the extent that he ran an online business with his wife, his earnings appear to have been less than the amount required to pay taxes. Based on his employment history, the Board finds that the Veteran has not been able to obtain or maintain an occupation earning more than marginal income throughout the appeal period. In making this finding, the Board notes that the inconsistencies in the Veteran's reported employment history appear to be indicative of his documented memory issues rather than a lack of credibility. See July 2017 Physical Medicine Rehab Note; October 2018 Physical Medicine Rehab Note. The Veteran has been afforded several VA examinations addressing the functional impact of his service-connected disabilities. At a May 2015 VA examination for tinnitus, the Veteran reported feeling that his tinnitus interfered with his ability to hear and caused chronic headaches. At a March 2021 VA examination, the Veteran reported that his tinnitus was loud, annoying, and disrupted his ability to sleep, but the examiner did not specify whether this reported functional impact would have been present during or throughout the appeal period. Per a July 2021 VA medical opinion, an examiner opined that the Veteran's tinnitus made it difficult to communicate, both face-to-face and by telephone, but would not render the Veteran unable to secure/maintain gainful employment. At an August 2017 VA examination for bilateral pes cavus and plantar fasciitis, the Veteran reported that he experienced chronic and severe pain with movement, requiring him to give up sports and his job as a ski instructor. The examiner determined that bilateral swelling, instability of station, disturbance of locomotion, interference with standing, lack of endurance, and pain on movement, weight-bearing, and non-weight-bearing impacted his functional ability. At an April 2021 VA examination, the examiner documented that the Veteran's bilateral foot disabilities interfered with his ability to sleep (due to shocking sensations waking him up) and to walk (due to loss of sensation causing instability and falls), but did not specify whether this functional impact would have been present during or throughout the appeal period. Per a July 2021 VA medical opinion, a different examiner opined that the Veteran's bilateral foot disabilities would make him unable to perform prolonged periods of standing, walking, or repetitive weight-bearing impact activity without a break, but he would be able to perform all sedentary work without limitations. At an October 2015 VA examination for PTSD and major depressive disorder (MDD), the Veteran indicated that other than going to church, he would not leave his bedroom. He reported leaving his job as a business analyst in 2008 due to difficulty focusing and with having to travel. He further reported experiencing a variety of PTSD symptoms related to ability to work, including getting agitated easily, lack of motivation, wanting to get away from everyone and everything, difficulty sleeping, passive suicidal ideation, unwillingness to fly, ripping clothing in panic multiple times a week, and inability to follow through on things. The examiner documented that the Veteran experienced depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, disturbances of motivation in mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a worklike setting as symptoms of his PTSD, and determined that the severity and duration of the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas. At a March 2019 VA examination for PTSD and MDD, the Veteran indicated that he had not worked since 2007 or 2008 because he had to fly a lot and had anxiety about flying. He reported experiencing a variety of PTSD symptoms related to ability to work, including panic attacks several times a week, distrustfulness, anger control problems, poor motivation, and unwillingness/inability to leave his room. The examiner documented that the Veteran experienced depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control as symptoms of his PTSD, and determined that the severity and duration of the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. The examiner indicated that she could not speak to the Veteran's physical ability to perform a job and sedentary functioning, but noted that anger and anxiety could affect the Veteran's ability to get along with others and tolerate work-related stress. The Veteran also attended a VA examination for PTSD and MDD in May 2021; however, the Board notes that this examination assesses the current severity and functional impact of his PTSD and MDD rather than the severity and functional impact of his PTSD and MDD during the appeal period. As such, this examination will not be discussed. However, the RO obtained an opinion specifically addressing the functional impact of the Veteran's PTSD and MDD in July 2021, but this opinion similarly appears to focus on the Veteran's current functional impairment rather than specifically during the appeal period. Even if the Board considers the opinion as focused on the period on appeal, the Board affords the opinion no probative weight due to the examiner's disregard of the evidence of record in rendering her opinion. The examiner determined that "[t]here are no functional impairments associated with the PTSD and MDD," and reasoned that the Veteran's "employment problems were more likely as not related to legal issues and substance addictionnot related to his mental disorders." The examiner then noted that the Veteran's report is vague and has been somewhat inconsistent over time and indicated that "numerous discrepancies" make the claim questionable. These statements by the examiner are inconsistent with VA's determinations, VA examiners' observations, the Veteran's treatment records, and the December 2019 letter from Dr. J.H. (discussed in more detail below). Specifically, the RO determined, and prior examiners have observed, at various points throughout the appeal period, that the Veteran's PTSD and MDD are characterized by weekly panic attacks, difficulty in adapting to stressful circumstances, difficulty in adapting to work and a worklike setting, depressed mood, disturbances of motivation and mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and chronic sleep impairment. One of the Veteran's VA providers documented his reported memory issues and attributed their worsening (but not onset) to his behavioral health issues, and his private provider, Dr. J.H., determined that he has memory loss for names of close relatives. Because the July 2021 VA examiner determined that the Veteran's PTSD and MDD have no associated functional impairments, without regard for the above determinations of record, and generally referenced inconsistencies in the record without regard for the Veteran's documented memory issues, the Board finds that the opinion is not an accurate assessment of the Veteran's medical history and service-connected functional impairments. The Veteran submitted the above-referenced letter from Dr. J.H. in January 2020. Dr. J.H. noted the various PTSD and MDD symptoms discussed across VA examinations and treatment records, and added that the Veteran also has the following functional impairments: gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, reported disorientation to time or place and memory loss of close relative; foot and leg pain associated with an in-service operation on his toes; inability to sit for long periods of time; poor vision; poor hearing; and PTSD triggers sending him into depression and periods in bed. Dr. J.H. concluded by opining that the Veteran "is totally unemployable because of mental, physical, and emotional reasons," with reference to the above-listed impairments. The Board notes that the Veteran is not service-connected for hearing loss or vision loss, and so these impairments are not considered in determining his entitlement to a TDIU. The Veteran's VA treatment records provide further background as to the functional impact of his service-connected disabilities throughout the appeal period. Across these records, he has reported many of the same symptoms and impairments noted at the above VA examinations and in VA opinions addressing functional impairments. The Veteran's Social Security Administration (SSA) records are associated with the claims file; however, these records predate the appeal period by several years and are therefore not relevant to the functional impairments of his service-connected disabilities during the appeal period. The Board has considered the Veteran's lay statements. At the February 2020 Board hearing, the Veteran's wife described prior incidents of the Veteran going missing for a whole day and ending up at a Wal-Mart three hours away, believing he was in Grenada in the 1980s following a 2012 house fire, and becoming anxious, jumpy, and "totally put [] to bed" due to triggers. She detailed that the Veteran does not get dressed and does not leave his bed all day, but she did not specify if this issue extended throughout the appeal period. The Veteran similarly testified that certain situations would trigger his PTSD and MDD symptoms, which would take him days to get over. He separately testified that he had difficulty completing tasks, such as repairing his house, which would take months and sometimes years to complete. Per a February 2015 letter submitted by the Veteran, he reported that the ringing in his ears reduced him to complete bed rest with nausea and vomiting and inability to walk, with one instance lasting from October to February. He described himself as "reduced to an invalid" and further reported that he had to be cared for by his family and sometimes his friends. In light of the Veteran's employment history, treatment records, and VA examinations detailing the functional impact of his service-connected disabilities, the Board finds that it is highly unlikely that the Veteran could have obtained or maintained any type of substantially gainful employment due to his service-connected disabilities throughout the appeal period. The evidence demonstrates that his ability to work was severely limited by his bilateral foot pain, more than weekly panic attacks, impaired impulse control, difficulty establishing and maintaining effective relationships, and difficulty adapting to stressful circumstances throughout the appeal period. Although the Veteran's occupational and educational history indicates that he had a law degree, was well-trained in business-related areas, and has worked in sedentary jobs, the functional impact of his service-connected mental health condition indicates that any such work would likely be unfeasible due to cognitive issues and difficulty dealing with others/working in a stressful environment. As the evidence demonstrates that the Veteran cannot obtain or maintain substantially gainful employment due to his service-connected disabilities, his claim for TDIU is granted prior to February 11, 2020. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.