Citation Nr: 21076816 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-19 200 DATE: December 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to January 28, 2014 is remanded. Evaluation in excess of 70 percent for PTSD from January 28, 2014 and thereafter is remanded. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from January 1964 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2013 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. Entitlement to TDIU The Veteran contends his service-connected disabilities, particularly his PTSD, prevent him from working. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 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 disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The Veteran is in receipt of a schedular rating of 50 percent for his PTSD prior to January 28, 2014 and 70 percent thereafter; 60 percent for prostate cancer from January 1, 2017; 40 percent for bilateral hearing loss from June 1, 2013; 10 percent for bilateral tinnitus from June 3, 2014; and noncompensable rating for erectile dysfunction and scars associated with prostate cancer. His combined rating was at least 70 percent, with one disability rated at least 40 percent, as of June 1, 2013. Accordingly, he meets the schedular criteria of 38 C.F.R. § 4.16(a). Thus, the issue is whether his service-connected disabilities have precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran reported being unable to work to his PTSD. He stated he could not deal with people, had verbal and physical altercations on the job, and had difficulty with focus and concentration. Evidence of record reflects that the Veteran has an eighth-grade education and was last engaged in substantially gainful employment prior to August 2008 as a carpenter. See VA Form 21-8940, received February 2011. In a June 2013 VA examination the examiner concluded the Veteran's service-connected hearing loss would have a substantial effect on his ability to engage in gainful employment. In a June 2013 VA PTSD examination, the Veteran reported being unable to work since 2008. The examiner determined the Veteran's symptoms did not impede his ability to obtain or sustain employment. In a March 2017 VA examination, the Veteran reported he stopped working because he realized he was going to hurt someone, or they would hurt him. This examiner concluded that the Veteran's PTSD had a considerable functional impact in that the Veteran was impulsive, had a short attention span, would be unable to follow complex instructions, had problems working with others due to outbursts of anger, had poorly regulated mood, easily forgot and would pose a safety hazard, would become agitated and unable to work a full eight-hour day, and would have difficulty handling time pressures and multiple tasks. At his August 2021 Board hearing, the Veteran testified that he had to quit working as he did not get along with anybody due to his PTSD symptoms. In light of the Veteran's occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that his service-connected disabilities are sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level throughout the period on appeal. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Evaluation in excess of 50 percent for PTSD prior to January 28, 2014 is remanded. 2. Evaluation in excess of 70 percent for PTSD from January 28, 2014 and thereafter is remanded. The Board finds that additional development is needed prior to adjudication of the issue on appeal. The Veteran contends he is entitled to a higher rating for his service-connected PTSD. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). The Board notes that the Veteran was last afforded a VA examination to assess the severity of his service-connected PTSD in March 2017, over four years ago. At his August 2021 Board hearing, the Veteran reported experiencing severe PTSD symptoms that had worsened since his last examination. In light of the foregoing, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: (Continued on the following page) Schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.