Citation Nr: 21075974 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-04 961 DATE: December 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether service-connected disability causes an inability to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2006 to October 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the record and has been reviewed. TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation by reason of service-connected posttraumatic stress disorder (PTSD), residuals of a traumatic brain injury (TBI) caused by an improvised explosive device (IED) blast, and pes planus. Relevant legal authority It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and 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. 38 C.F.R. § 4.16 (a). 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. 38 C.F.R. § 4.16 (a). An extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). In such case, the Board refers the claim to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). A TDIU claim is "part and parcel" of an underlying increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; and whether the veteran has the 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The relevant evidence consists of lay assertions from the Veteran, private and VA treatment records, evidence from the Social Security Administration (SSA), an October 2021 letter from a private therapist, and VA compensation examination reports dated in July and August 2017. The record indicates that the Veteran has not maintained employment since leaving service in 2010 but has attended some college since service. The Veteran is rated 70 percent disabled from PTSD, 10 percent disabled from residual dizziness related to TBI, 0 percent disabled from residual headaches from post-concussive syndrome, and 0 percent disabled from pes planus. The combined evaluation is 70 percent from August 16, 2010. As such, the threshold requirement for the assignment of a schedular TDIU are met here. See 38 C.F.R. § 4.16(a). Based on a review of the record, the Board also finds that the evidence is in a state of relative equipoise regarding whether service-connected disability has prevented gainful employment. See 38 C.F.R. § 4.3. The evidence shows that pes planus has affected the Veteran's ability to work in a non-sedentary position. The August 2017 VA report notes bilateral pain on passive and active movement, pain on weight-bearing, and pain while not weight-bearing. The examiner found that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or after repeated use over time. The examiner noted the primary functional limitation as "no prolonged standing or walking." For these reasons, the examiner found that pes planus impacted the Veteran's "ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.)" The evidence shows that PTSD has also impaired the Veteran's ability to work. The July 2017 VA report notes recurrent, involuntary, and intrusive distressing memories of traumatic events, recurrent distressing dreams related to traumatic events, and dissociative reactions such as flashbacks. The examiner found that PTSD caused avoidance, markedly diminished interest or participation in significant activities, feelings of detachment and estrangement from others, hypervigilance, and problems with concentration. The examiner noted a depressed mood, anxiety, suspiciousness, panic attacks, sleep impairment, suicidal ideation, and disturbance of motivation and mood. The examiner found that these symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. Private and VA treatment records show treatment for psychiatric problems and indicate hospitalization for a suicide attempt in 2017. The record contains two medical opinions addressing the issue of employment. The August 2017 VA examiner, after finding the Veteran unable to perform occupational tasks involving standing, walking, lifting, or sitting, nevertheless stated that pes planus would not render the Veteran unable to seek/maintain substantially gainful employment, as long as the following restrictions were met: no prolonged standing or walking. Employment in a position requiring little direct supervision, or one which requires little direct contact with the public is feasible, as long as the previously-specified restrictions were met. In contrast, the October 2021 letter from the private therapist states that the Veteran "is not able to hold a job of any sort, including remote, front line or in office work." In support, the therapist noted PTSD symptoms such as extreme hypervigilance, anger toward others, low tolerance for stress, severe depression and anxiety, ongoing suicidal ideation, and a "hard time maintaining his composure in normal daily living situations." The August 2017 VA report supports the notion that the Veteran could work productively. However, the evidence of psychiatric impairment noted elsewhere indicates that the type of employment contemplated in the August 2017 report would not be feasible. Indeed, the evidence is in equipoise regarding whether the aggregate effect service-connected impairment disables the Veteran from securing and following a substantially gainful occupation. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (responsibility for the ultimate TDIU determination is on VA not a medical examiner). In sum, the evidence indicates that psychiatric and physical impairment would limit the Veteran's ability to work in either manual or sedentary employment. The record indicates that his career background is limited, with his most recent employment being in the U.S. Army until 2010. The record indicates that he has been a student at certain times since then. The indicates that foot-related impairment would limit his ability to work productively on his feet, while psychiatric impairment would limit his ability to work productively in a sedentary or office setting. Based on the foregoing, the Board cannot find that a preponderance of the evidence is against the claim of entitlement to a TDIU. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.