Citation Nr: 21075546 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-01 682 DATE: December 20, 2021 ORDER Entitlement to service connection for hypertension to include as secondary to service-connected post-traumatic stress disorder (PTSD) is dismissed. Entitlement to individual disability rating (TDIU) from the earlier effective date of July 25, 2017 is granted. FINDINGS OF FACT 1. The October 2021 rating decision granted the Veteran entitlement to service connection for hypertension to include as secondary to service-connected post-traumatic stress disorder (PTSD). 2. Resolving reasonable doubt in favor of the Veteran, the evidence of record shows that the Veteran was unable to secure or follow a substantially gainful occupation from July 25, 2017. CONCLUSIONS OF LAW 1. There remain no allegations of error of fact or law for appellate consideration with respect to the issue of entitlement to service connection for hypertension to include as secondary to service-connected post-traumatic stress disorder (PTSD) and the issue is dismissed. 38 U.S.C. §§ 511, 7104, 7105; 38 C.F.R. § 20.101. 2. The criteria for entitlement to individual disability rating (TDIU) from July 25, 2017 have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 2002 to September 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of two separate September 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2021, the Board remanded this matter for further development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for hypertension to include as secondary to service-connected post-traumatic stress disorder (PTSD) Pursuant to applicable law and regulation, the Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law which affects the provision of benefits by the Secretary to veterans, their dependents, or survivors. 38 U.S.C. § 511(a). The Board may dismiss any appeal which fails to allege error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). Following the Board's June 2021 remand, the appeal for entitlement to service connection for hypertension to include as secondary to service-connected post-traumatic stress disorder (PTSD) was granted by the Regional Office in October 2021. The October 2021 rating decision granted in full the benefit sought on appeal, and there is no longer any issue regarding an error of fact or law before the Board as to the issue of entitlement to service connection for entitlement to service connection for hypertension to include as secondary to service-connected post-traumatic stress disorder (PTSD), and the Board finds that the appeal of that issue should be dismissed. See 38 U.S.C. §§ 511, 7104, 7105; 38 C.F.R. § 20.101. 2. Entitlement to individual disability rating (TDIU) from July 25, 2017 The Veteran contends that he cannot work due to his service-connected disabilities, specifically PTSD. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. "Substantially gainful employment" contains economic and noneconomic components. The economic component 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," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The October 2021 rating decision granted the Veteran entitlement to an individual disability rating (TDIU) effective September 18, 2018. In July 2017, the Veteran submitted an application for increased compensation based on unemployability. The Veteran indicated that he last worked full time on March 5, 2016 and he left his job because of his disabilities. The Veteran completed two years of college. The Veteran also received training after he became too disabled to work. The Veteran's payroll stubs that he provided demonstrate that he was working until March 3, 2016 at the Bay Clinic. In August 2007, the Veteran's employer provided a letter indicating that the Veteran would need a bachelor's degree to obtain national certifications. In a July 2016 VRE counseling record, narrative report the counselor indicated that the Veteran had a vocational impairment that continues in substantial part to the vocational impairment, that creates an employment handicap that is not serious. The counselor indicated that is reasonably feasible that the Veteran could achieve his vocational goal. The counselor indicated that the Veteran's employment handicap is due to the Veteran not overcoming the effects of the impairment through further education, transferable skills, or obtaining and maintaining suitable work. The Board acknowledges that the report lists anxiety as not being service connected. In September 2016, the Veteran was awarded service connection for persistent depressive disorder with anxious distress, post-traumatic stress disorder (PTSD), rated at 50 percent, effective May 17, 2016. In August 2017, the Veteran was afforded a VA examination for his PTSD. The examiner opined that the Veteran's symptoms manifested as an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner explained that the Veteran has difficulty working in an environment with multiple employees requiring collaboration or socialization. He would work better in an environment that was more independent. Anxiety is triggered by chaotic locations and is also impacted by criticism. In December 2017, the Veteran submitted a Notice of Disagreement. The Veteran explained that while he has professional credentials as a phlebotomist, he is unable to maintain employment within his field. The Veteran indicated that he tried working for a friend, but it required going into new environments and meeting new people which was stressful for him. He explained that his former jobs were problematic because he did not respond to feedback well and it increases his anxiety. The Veteran is unclear what jobs would be available that meet the VA examiner's criteria. The Veteran reported that he quit working on August 4, 2017. In December 2017, the Veteran's spouse submitted a statement in support of the Veteran's claim. She indicated that the Veteran has trouble with stress and work. The Veteran has to have everything a certain way and snaps and yells at the family. The Veteran's memory is also problematic. She also stated that they were homeless this summer because the Veteran could not maintain a job, however their current landlord has worked with them, and is allowing them to make payments. In October 2018, the Veteran was afforded a VA examination for his PTSD disability. The Veteran reported that his symptoms are worse since his prior examination. The examiner opined that the Veteran's symptoms manifest as an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner explained that, the Veteran's symptoms of PTSD have continued to worsen causing him a greater level of distress and impairment. In September 2019, the Veteran submitted a private rehabilitation services report. The Veteran reported working part time in 2016 as an internet installer. The Veteran reported having difficulty with the job as he would forget tools, and how to perform tasks, and working with the customers. The Veteran's job ended by mutual agreement. In November 2020, the Veteran testified at a Board hearing. The Veteran testified that he has earned 160 credits through university and military experience. When asked what type of job the Veteran could get, the Veteran stated only something that would make pennies. The issue of entitlement to a TDIU was initiated by the Veteran's July 2017 application for increased compensation based on unemployability. As to the period from September 18, 2018 to the present, the Veteran is rated as totally disabled based on a finding of unemployability and is in receipt of special monthly compensation under 38 U.S.C. § 1114(s). Therefore, the Board need not consider the issue of entitlement to a TDIU, from September 18, 2018. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Thus, the rating period for consideration on appeal is from July 25, 2017, as the date the claim for increased compensation based on unemployability was received. As pertinent prior to September 18, 2018, the Veteran was service connected for PTSD rated at 50 percent disabling, effective May 17, 2016; right shoulder tendinitis and instability rated at 10 percent, effective October 1, 2014; left shoulder tendinitis and instability rated at 10 percent, effective October 1, 2004; right knee chondromalacia patella rated at 10 percent, effective October 1, 2004; left knee chondromalacia patella rated at 10 percent, effective October 1, 2004; mechanical myofascial strain with L5 spondylopathy claimed as mid back, rated at 10 percent effective October 23, 2008; and hypertension associated with persistent depressive disorder, rated at 0 percent, effective May 17, 2016. Accordingly, the schedular percentage requirements for a TDIU were met at all times during the relevant period, as the Veteran had a combined rating of 70 percent or higher throughout the relevant period. See 38 C.F.R. § 4.16(a). The Board included a summary of the Veteran's VA examinations outside of the appeal period to help determine the scope of the Veteran's service-connected impairments, specifically his PTSD. The Board notes that the question of employability is ultimately one for the fact finder to decide, and not a medical provider. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Here, the Board acknowledges, that the Veteran stopped working full time in March 2016. Then he received VRE assistance through 2017 and worked for a friend that concluded in August 2017. Examining the record as a whole, it is clear that the Veteran's PTSD has impacted his ability to work. The Board does not find that the Veteran's shoulders, knees, back etc. impacted his ability to work as they conditions are mild. Resolving reasonable doubt in the Veteran's favor the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation at the time of his July 25, 2017 application for increased compensation based on unemployability. The Board notes that the July 2016 VRE counselor's assessment was based on the Veteran's anxiety not being service connected, thus the Board does not find the assessment to be probative. The Board acknowledges that the Veteran worked for his friend, and that ended in August 2017, but it was a protective environment, and was not full time. The Board disagrees with the August 2017 VA examiner's assessment. While there are employment opportunities available that would allow the Veteran to work independently, even those jobs would most likely require the Veteran to be critiqued to an extent, and this has caused the Veteran severe anxiety. The examiner listed employment criteria that is not consistent with an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Board finds that more likely than not that the Veteran was unable to secure substantial employment at the time of his July 2017 application for a TDIU. The Board finds the Veteran and his spouse's testimony, and the October 2018 VA examination to be probative evidence. While the October 2018 VA examiner indicated that the Veteran's disability worsened, the Board finds that the date of the worsening may have occurred at some point after the Veteran stopped working full time, potentially after the Veteran was unable to complete VRE training and was not encouraged to pursue his own business. The Board considered issuing an effective date on the last date the Veteran worked in August but determined that the date of the application was reasonable. The Board concludes that resolving reasonable doubt in favor of the Veteran, the probative evidence of record demonstrates that from July 25, 2017 the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected PTSD disability. As such, the evidence is at least at equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate 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.