Citation Nr: 21075660 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-26 276 DATE: December 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from August 2, 2018, is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) and in excess of 70 percent from August 2, 2018, is remanded. Service connection for a back disability is remanded. Entitlement to a TDIU prior to August 2, 2018, is remanded. FINDING OF FACT From August 2, 2018, the schedular criteria for a TDIU have been met and the Veteran's service-connected disabilities are shown to result in an inability to obtain or maintain substantially gainful employment. CONCLUSION OF LAW From August 2, 2018, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from October 2011 to February 2015. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In November 2021, the Veteran testified at a virtual hearing before the undersigned. In October 2018, the Veteran wrote that he was unable to maintain employment due to his PTSD. This raises the issue of entitlement to a TDIU due to his service-connected PTSD and is part and parcel with his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a TDIU from August 2, 2018 This appeal stems from the Veteran's original service connection claim filed on June 12, 2017. Prior to August 2, 2018, the Veteran was service connected for PTSD, rated as 30 percent disabling, and tinnitus, rated as 10 percent disabling. The Veteran's total disability rating prior to August 2, 2018, was 40 percent. Thus, the Veteran did not meet the schedular criteria for a TDIU. Although he did not meet the requirements for a TDIU prior to August 2, 2018, the Board will defer adjudication of a TDIU prior to August 2, 2018, pending the development sought regarding the issues of an increased rating and service connection that are addressed in the remand section of this decision. 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). From August 2, 2018, the Veteran is service connected for PTSD, rated as 70 percent disabling, and tinnitus, rated as 10 percent disabling. The Veteran's total disability rating from this period is 70 percent. Thus, the Veteran met the schedular criteria for a TDIU. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Turning to the evidence, in his October 2018 TDIU application, the Veteran indicated that his service-connected PTSD caused him to become too disabled to work in February 2015. The Veteran work history reflects that he last worked from November 2017 to November 2018 at a restaurant where his responsibilities included doing dishes and bussing tables. During this time, he worked about 15 to 20 hours a week and earned $7,085.56. His former employer indicated that he left because of back pain. See December 2018 Employment Information. During the Veteran's August 2018 VA psychiatric examination, the Veteran was found to be experiencing symptoms such as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. Occupationally, it was noted that he was working 4-hour shifts, twice a week at Moe's, but continued to have difficulty working those short amounts due to difficulty controlling his anger, not being able to deal with people, and negative attitudes toward coworkers and supervisors. The examiner found that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. In November 2018, the Veteran underwent another VA psychiatric examination, the Veteran was found to be experiencing symptoms such as depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control. Occupationally, it was noted that he quit working a few weeks prior. The examiner found that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. In April 2019, the Veteran underwent a Social Security Administration (SSA) psychological examination. The Veteran was noted to be irritable, have difficulty with sleep, have thoughts of hurting others, angry, and uncomfortable around others. In October 2019, the Veteran submitted a private examination report for his PTSD. The Veteran was found to be experiencing symptoms such depressed mood, loss of interest in usually enjoyable activities, diminished energy, fatigue, difficulty with concentration, memory issues, and hopelessness. The private examiner found that the Veteran's PTSD resulted in the Veteran being unemployable. His near-continuous PTSD symptoms prevented him from functioning independently, appropriately, and effectively, resulting in deficits in his ability to establish and maintain effective work-related relationships. In February 2020, the Veteran was granted SSA disability benefits. In rendering a closer examination of the evidence, the Board finds the evidence supports a TDIU from August 2, 2018. From an economic perspective, the Board finds the Veteran was largely unemployed during the appellate timeframe with the exception of a brief time period until November 2018, when the Veteran worked at a restaurant. During this time, the Veteran's employer indicated that his gross earnings were $7,085.56. However, the Board notes that these earnings included a period of time outside the appeal period being decided herein. Indeed, these earnings were for the time period from November 2017 to November 2018 or a one year period. The Board finds that while the Veteran was employed between August 2, 2108 and November 2018, this period of employment would not preclude a TDIU award here as it can be considered "marginal" employment given the earnings reported. Marginal employment is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17(a). As noted above, the Veteran's taxable income was, at the most, $7,085.56 for the 12 months from November 2017 to November 2018. Consulting the poverty threshold for one person, under 65, as determined by the U.S. Department of Commerce, Bureau of the Census, from 2017 and 2018, was $12,752 and $13,064, respectively. The Board finds that the Veteran was below the poverty level for one person for both years. As such, while employed between August 2018 and November 2018, such employment can be considered "marginal." From a non-economic perspective, it is clear the Veteran's service-connected disabilities preclude substantial gainful employment, particularly his service-connected PTSD. In particular, the evidence overwhelmingly indicates that the Veteran has struggled with work-place stress and getting along with coworkers, leading to significant obstacles in reliability and productivity. While it does not appear that the Veteran's service-connected disabilities cause any physical limitations for employment, his PTSD does cause significant limitations mental limitations in the Veteran's ability to be gainfully employed. In light of the Veteran's past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran was not capable of substantially gainful work for the appellate period. Any employment during this time frame was marginal at best. Accordingly, entitlement to a TDIU from August 2, 2018, is warranted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for service-connected PTSD and in excess of 70 percent from August 2, 2018 is remanded. Upon consideration of the evidence of record and the Veteran's testimony at the hearing, the Board finds that additional development is needed prior to issuing a decision on appeal. The Veteran was last examined for purposes of assessing the severity of his PTSD in October 2019. During his November 2021 hearing, the Veteran testified that his disability had worsened since that time, such that his medication has been increased. Under the circumstances, a new examination is warranted. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Service connection for a back disability is remanded. The Board finds that a VA examination is warranted for the Veteran's service connection claim to determine if the Veteran's back disability is related to his service. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran's February 2019 private treatment records reflect a diagnosis of lumbar intervertebral disc displacement; the Veteran testified that this condition is due runs, marches, and carrying heavy equipment during service; has asserted that this condition has continued his service; and has provided lay evidence linking the two; however, there is insufficient evidence of record to decide the issue. Consequently, remand for an examination and etiology opinion is warranted. See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). 3. Entitlement to a TDIU prior to August 2, 2018 is remanded. Because the development sought in connection with the Veteran's claim for a higher rating for his PTSD and service connection for a back disability may impact his TDIU claim, the Board finds the issue to be intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The matters are REMANDED for the following action: 1. Assist the Veteran with obtaining updated treatment records. 2. After the above development is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected PTSD. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. 3. Arrange for a VA examination of the Veteran to determine the nature and likely cause his back disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: a) Identify all back disabilities present during the appeal period. b) Is it at least as likely as not (50% or greater probability) that a back disability was either incurred in or otherwise related to the Veteran's active duty service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must discuss the Veteran's lay testimony that his back disability was due to runs, marches, and carrying heavy equipment during his service. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.