Citation Nr: 21076250 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-14 805A DATE: December 22, 2021 ORDER Entitlement to total disability rating based on individual unemployability (TDIU) prior to March 17, 2015, is granted. FINDING OF FACT Prior to March 17, 2015, the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Prior to March 17, 2015, the criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1969 to March 1970 with service in the Republic of Vietnam. The Veteran passed away on September 1, 2021. At this juncture, the Board would be remiss if it did not recognize the Veteran's service to this country and the sacrifices made therein. VA is sincerely grateful. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2012 and January 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of that proceeding has been prepared and associated with the Veteran's claims file. See August 2018, Hearing Transcript. In August 2020, the Board issued a decision denying the claims presently on appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and, in a Joint Motion for Partial Remand (JMPR), the claim was remanded to the Board by mutual agreement between the Secretary and the Veteran's attorney, on the basis the Board found the numerous medical opinions in the Veteran's claims file opined he could perform sedentary work. However, the Board did not opine as to its interpretation of sedentary work as it related to this Veteran. Furthermore, the JMPR asked the Board to readdress the effect the Veteran's posttraumatic stress disorder (PTSD) would have had on his ability to secure and follow a substantially gainful occupation, within the guidelines delineated in Ray. See Ray v. Wilkie, 31 Vet. App. 58, 73(2019). The Board will specifically address each issue in turn below, including the reasons for the prior JMPR. See April 2021 CAVC JMPR. Unfortunately, the Veteran passed away during the pendency of this appeal, and in September 2021 the Board dismissed the claim. However, in November 2021, the RO sent notification that D. Dixon submitted a timely application and was granted the rights to substitute. Given such, she is now the appellant. 1. Entitlement to a TDIU prior to March 17, 2015. The appellant is seeking entitlement to a TDIU prior to March 17, 2015. Specifically, the appellant asserts that due to the Veteran's service-connected disabilities he was unable to maintain employment, his pes planus did not allow him to stand or walk for long periods of time. See July 2006 Statement in support of claim; June 2011 Statement in Support of Claim; May 2015 VA Form 9; August 2018 Board Hearing Transcript. Applicable Laws and Regulations VA will grant TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.40, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 361 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 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, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of: 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. Further, in Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Court held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Relevant Factual Evidence In November 2006, the Veteran submitted a work history report to the Social Security Administration (SSA), in which he reported work as a truck driver and forklift driver from 1991 through 2002, where he reported loading and unloading trucks. See November 2006 SSA Medical Records at 9-11. The Veteran was noted as having a GED. Id. at 13. In a December 2007 VA PTSD examination report, the examiner noted the Veteran's symptoms as persistent re-experiencing the traumatic events, avoidance of stimuli associated with trauma, numbing of general responsiveness, marked diminished interest or participation in significant activities, restricted rang of affect, difficulty falling or staying asleep, and hypervigilance. See December 2007 VA PTSD Examination. The examiner also noted the Veteran's symptoms cause significant distress or impairment in social, occupational, or other important areas of functioning. The examiner opined the Veteran's "psychosocial functioning is impaired marked by limited relationships with others homelessness and a history of fighting with others." Id. Lastly, the examiner opined "[t]he combination of the PTSD and substance use are likely responsible for his difficulty with relationships and employment." Id. In November 2008, VA performed an unemployability examination on the Veteran, noting, the veteran's usual occupation as tractor and trailer driver and unloader and that he was last employed two to five years prior. The examiner noted the Veteran reported stopping work due to "foot pain ...unable to drive and load anymore." See November 2008 VA Unemployability Exam. The examiner opined the Veteran's service-connected pes planus, neck, and back conditions interfere with heavy physical labor but should not preclude light or sedentary physical labor. Id. at 16. In October 2011, VA performed a compensation and pension (C&P) examination by reviewing the Veteran's claims file. See October 2011 VA C&P Examination. The examiner noted the Veteran regularly uses an assistive device (cane) to ambulate. The examiner opined the Veteran was able to perform regular duty employment based on the limitations of his pes planus. However, the examiner failed to provide an opinion on the effects of the Veteran's PTSD on employment and the combined effects of the Veteran's service-connected disabilities and employability. Id. In September 2012, VA performed a compensation and pension examination in conjunction with a claim increase and unemployability examination, where the examiner noted the Veteran reported he is unemployable because of his service-connected PTSD and pes planus. See September 2012 VA Examination. The examiner opined the Veteran was capable of sedentary to light physical work based on his medical conditions. Id. In November 2012, the Veteran presented to a VA PTSD examination, the examiner noted the Veteran's PTSD causes occasional decrease in work and efficiency and intermittent periods of inability to perform occupational tasks. See November 2012 PTSD Examination. The examiner noted the Veteran's symptoms as depressed mood, anxiety, suspiciousness, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. at 8. The examiner opined that the Veteran's PTSD did not render him unemployable. However, the examiner limited the Veteran to sedentary work with simple instructions, and noted the Veteran lacks motivation, and experiences episodes of irritability and anger thus limiting his ability to work in stressful setting or with the public. Id. In May 2018, VA issued a PTSD disability benefits questionnaire (DBQ), where the examiner noted total occupational and social impairment. See May 2018 VA PTSD DBQ. The examiner also noted the Veteran has suffered from chronic PTSD symptoms since separation, such as, anxiety and depression. The examiner then opined "PTSD alone prevents gainful employment and results in total vocational disability." Id. The examiner went on to opine that the Veteran's "PTSD in isolation is totally disabling socially and vocationally." Id. Analysis As was agreed upon in the April 2021JMPR, the Board shall reconsider the Veteran's employability prior to March 17, 2015. Specifically, in the context of his residual capacity to perform sedentary work and his specific circumstances. Additionally, the Board will address the conclusions of the May 2018 PTSD examination report. Prior to March 17, 2015, the Veteran's combined rating was 80 percent on June 7, 2011 for his service-connected PTSD (50 percent), bilateral pes planus (50 percent). As such, since the Veteran filed his claim for a TDIU on June 7, 2011, the schedular requirements for a TDIU have been met for the entire period on appeal. See 38 C.F.R. § 4.16(a). On the Veteran's VA form 21-4138 Statement in Support of Claim he stated that he was "unable to work" because of his service-connected disabilities. See June 2011 Statement in Support of Claim. Furthermore, the appellant asserts that due to the Veteran's service-connected disabilities he was unable to maintain employment, as his pes planus did not allow him to stand or walk for long periods of time. See July 2006 Statement in support of claim; May 2015 VA Form 9; August 2018 Board Hearing Transcript. In fact, the Veteran was lasted employed several years before he filed for TDIU as noted in a VA unemployability examination in 2008, where the Veteran reported he last worked two to five years ago. See November 2008 VA Unemployability Exam. The Veteran also reports to have a GED. See November 2006 SSA Medical Records at 13. Here, the evidence supports a finding that the Veteran is unemployable as a result of his service-connected disabilities. Specifically, the Board finds that there is competent and probative evidence that shows the Veteran's PTSD and other service-connected disabilities cause him to have difficulty with working with other people and coping with the demands of a work environment in that he is unable to maintain employment as a result. Specifically, where the longitudinal PTSD examination reports the Veteran show consistent impairment with social and occupational functioning with a rapid decline over time. See December 2007 VA PTSD Examination; November 2012 PTSD Examination. Ultimately, resulting in the Veteran's PTSD causing him to become totally disabled socially and vocationally. See May 2018 VA PTSD DBQ. Further, the Board notes the physical limitations as articulated in the various VA examination reports limiting the Veteran to sedentary work because of the pain associated with his pes planus, would undoubtedly impact his prior employment as a truck driver and forklift driver that required the unloading of trucks. See November 2006 SSA Medical Records at 9-11. The Board therefore finds that there is adequate and competent evidence indicating that the Veteran's service-connected disabilities in combination prevent him from being able to maintain any gainful employment. Notably, the Board has considered whether any one service-connected disability has rendered the Veteran unemployable and finds that the record, at this juncture, does not clearly indicate that to be the case. Specifically, the evidence of record reflects that the Veteran's PTSD resulted in symptoms of depressed mood, anxiety, suspiciousness, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiners of record further limited the Veteran to sedentary work with simple instructions, and noted the Veteran lacks motivation, and experiences episodes of irritability and anger thus limiting his ability to work in a stressful setting or with the public. See November 2012 PTSD Examination. Ultimately, the Veteran was found 100 percent disabled due to his PTSD being totally disabling socially and vocationally. See May 2018 VA PTSD DBQ. However, none of the psychiatric examiners have stated that he is unemployable in such a situation during the period from, June 7, 2011 to March 17, 2015. TDIU may meet the requirement of a disability rated as 100 percent disabling for purposes of section 1114(s)(1) only if the veteran's unemployability is based on a single condition. Youngblood v. Wilkie, 31 Vet. App. 412, 415 (2019); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when determining entitlement to an award of TDIU, the Board is required to consider and discuss the Veteran's education, training, and occupational history and explicitly relate these factors to the disabilities of the individual Veteran. Cathell v. Brown, 8 Vet. App. 539, 544 (1996). Whether the Veteran can actually find employment is not determinative, as the focus of the inquiry is on "whether the veteran is capable of performing the physical and mental acts required by employment." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran had obtained a GED and past work as a truck driver and forklift operator, he reported loading and unloading trucks with this work. See November 2006 SSA Medical Records at 9-11. The Board finds employment as a truck driver and forklift operator are sedentary work as the performance of this work would require the Veteran to be seated. However, this work is not the equivalent of office work, as the operation of a truck and forklift require the use of the feet, and the Veteran's past work required the additional component of unloading, as such the Veteran could not perform this work. Additionally, the Veteran's PTSD had limited him to sedentary work with simple instructions, away from the public. See November 2012 PTSD Examination. When evaluating the Veteran's employability, the Board finds that the Veteran's physical limitations along with his psychological limitations in combination prevented him from being able to maintain any gainful employment. As noted, the evidentiary standard for TDIU opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific Veteran would be so precluded as a result of service-connected disabilities. Thus, when considering this specific Veteran's disabilities in connection with his employability, the evidence of record establishes entitlement to TDIU. Hence, affording the Veteran the benefit of the doubt, the claim is granted. 38 U.S.C. § 5107 (b). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.