Citation Nr: 21076177
Decision Date: 12/22/21	Archive Date: 12/22/21

DOCKET NO. 95-18 781
DATE: December 22, 2021

ORDER

Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is granted.

FINDING OF FACT

The record evidence shows that the Veteran's service-connected acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and alcohol dependence in remission, precludes him from obtaining and maintaining substantially gainful employment.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty for training from May 1986 to June 1986 and from February 1989 to May 1989.  He had active duty service from December 1990 to June 1991.

This matter again comes before the Board of Veterans' Appeals (Board) on appeal from May 2017 and January 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Board initially denied this matter in a March 2020 decision, which the Veteran promptly appealed to the United States Court of Appeals for Veterans Claims (Court). By way of a December 2020 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR) and returned this issue to the Board.

TDIU

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.

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. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003).

If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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).

VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating.

When determining whether the criteria for a TDIU are met, the Board is required to include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16 (b).

The Veteran's sole compensable service-connected disability is an acquired psychiatric disorder, to include PTSD, major depressive disorder, and alcohol dependence in remission rated as 70 percent disabling effective July 21, 1995. Accordingly, the criteria for schedular consideration of TDIU are satisfied. 38 C.F.R. § 4.16(a).

The probative evidence of record also reflects that the Veteran's service-connected psychiatric condition adversely affects his ability to work. Specifically, the Veteran's various psychiatric examinations of record indicate a negative impact of his symptomatology on his ability to work. His August 1995 VA examination report noted that "[the Veteran's] symptoms are affecting [his work] and that he is always tired, he is not able to sleep well, is feeling chronically anxious and nervous." A September 1998 examiner acknowledged that the Veteran "was experiencing a good deal of stress at work" and was reassigned in his position because he was accused of threatening one of his supervisors.

When the Veteran was again evaluated by VA in 1999, the examiner reported that the Veteran had been reassigned during work with a police department as punishment for an "ongoing conflict at work" as he experienced problems with his job since returning to the United States from deployment during his active duty service. Specifically, the Veteran reported that he had interpersonal difficulties with partners and that his supervisors had harassed him.

During an evaluation in August 2011, the Veteran reported that he was continuously at odds with a chief and that he was told he could not get along with others. He claims that since his firing from the police department, he had been black-listed and unable to continue working. When he was evaluated approximately two years later in April 2013, the Veteran reported that he had reenrolled in school and that he did not have any academic problems; however, he had not worked since his firing in 2002. The Veteran's June 2016 VA examination also reflects that he had not worked since 2002 and had been collecting social security disability benefits since 2006.

The Veteran was examined again in July 2017, at which time the examiner noted that he had applied for jobs but had not been successful in obtaining new employment. When he was examined in December of that same year, the Veteran reported that he had been rejected for multiple jobs though was successfully volunteering.

Additionally, private examiners suggested in their reports that the Veteran's psychiatric condition negatively impacts his ability to work. During an April 2003 evaluation, the examiner found "[the Veteran's] post[-]traumatic stress problems were impacting his job, and [he] was having too many flashbacks that caused him not to be able to focus on the activities that were required in his work situation." A November 2003 evaluation confirmed these findings, with the examiner advising that "[the Veteran] not find work in highly stressful or conflicting positions which may trigger some of his flashbacks." Another private examiner concluded during a March 2006 evaluation that the Veteran's psychiatric condition could not be "malinger[ed] for the purpose of financial gain."

A July 2017 private examiner concluded that the Veteran's condition caused him to deteriorate to the point of it being at least as likely as not that he could not secure or follow substantially gainful employment since 2002. Specifically, the examiner noted "[the Veteran] is unable to adapt to the psychological pressures and cognitive demands of the typical workplace" and that his previous line of work "causes the Veteran to reexperience his traumatic experiences in the military and compounds his already fearful and hypervigilant states of mind."

Most recently, an October 2021 evaluation reflects that the Veteran's service-connected acquired psychiatric disorder prevents him from obtaining and maintaining substantially gainful employment. Specifically, the examiner found that the Veteran's symptoms of panic attacks, anxiety, and flashbacks "render him off task and unproductive. Such distractibility and time off task would not be tolerated by any employer at any skill or exertional level." Moreover, the Veteran's anger, irritability, and tendency to isolate, "would impede his ability to appropriately interact with the general public, coworkers, and supervisors and would not be tolerated by employers." Also, the Veteran's noted concentration and memory impairments exacerbate his "impaired concentration" which would in turn render him unable to complete tasks efficiently and without errors.

Finally, the Board notes that the Veteran's Social Security Administration (SSA) records indicate that he has been receiving disability benefits for his acquired psychiatric disorder, as his condition causes him incapable of "interact[ing] with others or tolerat[ing] ordinary work related stress." See September 2008 SSA Disability Determination and Transmittal (received in March 2010).

Resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected acquired psychiatric disorder, to include PTSD, major depressive disorder, and alcohol use disorder in remission, have resulted in unemployability, based on the evidence discussed above. Given the Veteran's symptoms and noted functional impairment due to his service-connected disability, the Board affords the Veteran the benefit of the doubt and finds that his service-connected disability satisfies the criteria for TDIU. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.16(a); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to veterans' has 'taken upon itself the risk of error' in awarding . . . benefits"). Accordingly, the Board grants TDIU. 

 

Shabnam Morrad

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Hoffman

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.