Citation Nr: 21076479 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 12-13 681 DATE: December 23, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT For the period on appeal, the Veteran's disabilities meet the schedular criteria for consideration of a TDIU, and the record is in equipoise as to whether they precluded him from substantial and 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, 3.341, 4.16, 4.18, 4.19. Diagnostic Code 9411, 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in the case, served on active duty in the United States Army from December 1966 to August 1968. This appeal initially came to the Board of Veterans' Appeals (Board) from an August 2010 rating decision. In October 2020, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In May 2021 the Court vacated the Board decision and remanded the Veteran's claim for action consistent with the directives of a Joint Motion for Remand (JMR). In March 2017, the Veteran testified before the undersigned Veteran's Law Judge (VLJ). A copy of the hearing transcript has been associated with the Veteran's electronic claims file. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). A total disability rating based on individual unemployability (TDIU) During the March 2017 Board hearing, the Veteran indicated he had been unemployed since 2008 because of the service-connected PTSD. The Board notes that a TDIU was denied in a July 2013 rating decision based on the Veteran's total disability rating at the time. Given the grant of increased ratings and the Veteran addressing employment during the March 2017 Board hearing, the record sufficiently raised the issue of a TDIU on a schedular basis. See Rice, 22 Vet. App. 447 (2009). Since the Board's denial and Court remand, the Veteran completed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, underwent another VA psychiatric examination, and submitted a new lay statement describing his PTSD and Depression symptoms impact on employment. Total disability meriting a 100 percent schedular rating exists "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. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability nonetheless may be assigned if a Veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For purposes of determining whether these threshold minimum rating requirements are met, disabilities affecting both upper or lower extremities or stemming from common etiology or single accident are considered as one, collective disability. "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual 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, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. §§ 4.16 (a), 4.18. In this case, the Veteran was granted a 70 percent rating for his service-connected PTSD for the entire period on appeal. The Veteran thus meets the schedular criteria for TDIU for the entire appeal period. The Veteran has Posttraumatic Stress Disorder listed as his only service-connected disability, which was expanded to include a second mental health diagnosis of Major Depressive Disorder, moderate secondary to his PTSD. His combined rating has been 70 percent since April 14, 2008. Thus, the percentage requirements of § 4.16(a) are met. Resolution of the appeal of this claim therefore turns on whether the service-connected disabilities precluded the Veteran from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits him to earn a "living wage") since April 14, 2008. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board finds that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his level of education and prior work experience and training. Regarding the Veteran's employment history, based on the Veteran's September 2021 lay statement and October 2021 VA Form 21-8940, after graduating high school in 1966, he went to work as a janitor at a packaging plant in Texas. He worked there about five months before being drafted into the Army. He served on active duty from December 1966 to August 1968, where he did a combat tour in Vietnam, experienced several war-related stressors, and developed PTSD. After his honorable discharge in 1968, the Veteran returned to the plant in Texas, where he continued to work as a janitor. His duties eventually included moving pallets of plastic pellets from a rail car, hooking up a hose to blow the pellets into a silo, as well as driving a forklift. He worked this job from 1968 to May 2009, when he retired due to service-connected PTSD disability. The Veteran has no other work history other than his Army service and 41 years working at the same packaging plant. As for the Veteran's education, after high school graduation, he attended a junior college from Fall 1973 to spring 1977, while working at the plant, but did not obtain a degree. Because of his PTSD, the Veteran found it extremely difficult to focus on his studies and the required coursework. In his October 2021 statement he explains, "I was instead constantly focused on my experiences in Vietnam. Due to my inability to focus, I was placed on academic probation for five of the eight semesters at junior college and eventually dropped out." The Veteran completed a heating and air conditioning training in 1973, but again found this training difficult because of his inability to concentrate due to PTSD symptoms related to Vietnam. The Veteran never worked in this field, and his training is now nearly 50 years out of date. The Veteran underwent a private psychiatric evaluation in June 2010. The Veteran reported numerous PTSD stressors while in Vietnam, with recurrent and intrusive distressing recollections of combat events; recurrent distressing dreams of the events, acting or feeling as if the events were recurring; physiological reactivity and intense psychological distress at exposure to internal and external cues that symbolize or resemble aspects of the combat experience (including smells and particular songs on the radio); persistent avoidance of stimuli associated with combat experience, to include efforts to avoid thoughts and feelings associated with combat, and efforts to avoid activities, places, and people that arouse recollections of combat; marked diminished participation in significant events due to crowd avoidance; feelings of detachment and estrangements from others; restricted range of affects (difficulties with close family relationships); persistent symptoms of increased arousal which should be the focus of current psychiatric treatment, and include difficulties falling and staying asleep; irritability and outbursts of anger; difficulty concentrating; hypervigilance; and exaggerated startle responses. The private doctor included a functional assessment in November 2011 as follows: Occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood due to such symptoms as: Episodic suicidal ideation in response to waves of hopeless dysphoria; speech intermittently illogical, obscure or irrelevant (demonstrated in the mental status exam); near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; inability to establish and maintain effective relationships; unprovoked irritability with periods of violence or self-imposed social isolation due to fears of becoming violent; spatial disorientation due to distraction of anxiety and cognitive drift; neglect of personal appearance and hygiene unless monitored by spouse who must also administer his medications; and difficulty in adapting to stressful circumstances (including work or a work-like setting) render him 100 percent unemployable. The doctor added, "Were it not for a supportive family member, this Veteran would likely require institutional care." The Veteran was given a Compensation and Pension (C&P) PTSD exam in February 2012, which assessed overall service-connected mental health disability as resulting in occupational and social impairment with reduced reliability and productivity. At this examination, the Veteran was diagnosed with PTSD and Major Depressive Disorder. The examiner found that the Veteran spent most of his days indoors in his room watching TV or listening to music, sometimes staring at the wall. He said the Veteran reported that he had been unemployed since May of 2008, when a supervisor moved him from an isolated job to one around more people. Due to the change in work circumstances, the Veteran felt forced to put in for retirement. He draws a small pension from the company, and this has not changed since his last rating. The examiner reviewed mental patient outpatient treatment notes for January 2012 and read that the Veteran sleeps 5 hours per night; rates his depression as 7/10 and his anxiety as 8/10; experiences intrusive memories and nightmares "a few times per week," and dissociates "a few times per week. He rated his anger intensity as 8/10. The February 2012 examiner found the following mental health symptoms: Depressed mood; anxiety; suspiciousness; panic attacks weekly; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work; inability to establish and maintain effective relationships, and suicidal ideation. The Veteran reported his wife monitors his medications, because he is prone to take them twice. His granddaughters pay his bills, because he has had utilities turned off due to forgetting to pay bills. The VA requested and got a medical opinion regarding conflicting evidence in April 2017 to reconcile the June 2010 and November 2011 private mental health assessments with the February 2012 C&P PTSD examination report. The third examiner found that due to the severity of symptoms as well as the number of symptoms, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood is the best summary of the claimant's level of impairment. Her opinion regarding conflicting evidence supports the private doctor's overall assessment over the C&P examiner's less severe assessment. The April 2017 examiner added, "The claimant has not been able to obtain or maintain employment since 2008 when he was placed in an area of many co-workers working near him." Following this examiner's opinion, the Veteran's initial PTSD rating was increased from 50 to 70 percent in December 2017. Most recently the Veteran was afforded a new C&P examination in November 2021. At the examination the Veteran's diagnoses of PTSD and Major Depressive Disorder, moderate, were confirmed. The examiner found that symptoms of PTSD and major depressive disorder overlap and cannot be separated out without speculation. Both PTSD and major depressive disorder create poor concentration, poor motivation, isolation, detachment from others, anger and angry outbursts, poor sleep patterns, hopelessness, and thoughts of suicide. This examiner agreed with the last assessor's overall evaluation of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At this examination the Veteran said of his Vietnam combat experience: I was in 5 fights. I've seen guys with half of their face shot off. Their legs shot off. My friends had their arms shot. My best friend was killed, and I just can't get over it. I got a commendation medal because I was hurt in a fire fight. When describing the effects of resulting mental health impairment on the Veteran's ability to perform physical and sedentary activities of employment, this examiner said: PTSD creates impairments by avoidance of situations or people that may trigger intrusive memories of traumatic events, difficulty maintaining social and work relationships, inability to manage emotions under stress, flashbacks or dissociative responses which create safety issues, poor concentration due to effects of intrusive thoughts or anxiety in stressful situations, poor memory and difficulty keeping up with tasks in a timely manner, working a full day without mental health symptoms, and isolation and difficulty working in close proximity to others or accepting criticism from others. Major depression creates occupational and social impairments by inhibiting motivation to engage with others, completing personal hygiene and other day to day tasks, maintaining attendance and the ability to work a full schedule, and difficulty managing emotions under stressful situations. These impairments create difficulty in both physical and sedentary activities of employment. The suicide risk level is low acute. In the Veteran's October 2021 lay statement, he made clear he has no work experience other than soldiering and being a janitor/ forklift driver. He never used his heating and air conditioning training, which is more than 40 years old now. He has no skills for office work, no customer service experience, no home computer or any computer skills, no technical skills, no other sedentary occupational skills, no success in formal education settings despite years of trying. The one isolated job he had for more than 40 years was replaced, and he found working with others due to his numerous mental health symptoms unmanageable. Finally, due to worsening of his PTSD symptoms from having tried working with others, which resulted in his decision to retire, he now feels maintaining the isolated occupation he held for 41 years, if such a position were reinstated, would be impossible. (Continued on the next page) The Board has considered the opinions of the medical examiners as well as the medical and SSA records and the Veteran's own statements and concludes that the evidence overall does demonstrate the Veteran has had a level of occupational impairment that is at least in equipoise on the question of whether his service-connected disabilities preclude him from obtaining and maintaining substantial and gainful employment. Giving the Veteran the benefit of the doubt, he has met the criteria for TDIU for the entire period on appeal. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. 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.