Citation Nr: 21076977 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-25 320 DATE: December 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), based on PTSD alone, is granted. FINDING OF FACT The Veteran's service-connected posttraumatic stress disorder (PTSD) alone prevents him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from February 2004 to March 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA); this case is in VA's legacy appeals system. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to a TDIU The Veteran seeks a TDIU. He contends that his PTSD symptoms have prevented him from securing or following a substantially gainful occupation since the day after he separated from active service. When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In this situation, the claim for TDIU has the same appeal period as that of the increased rating claim. The Veteran did not file a VA form 21-8940 explicitly claiming a TDIU until December 2015. However, he filed during the pendency of his appeal on the issue of an increased rating for PTSD and claimed his inability to work was caused by his PTSD. Therefore, the period on appeal for a TDIU is the same as that for an increased rating for PTSD, which began March 22, 2013, the day after he separated from active service. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability 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 or more. Id. For the purposes 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, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. The Veteran has the following disabilities that are service connected: PTSD (rated 50 percent, from March 2013 to present); bilateral plantar fasciitis (rated 0 percent from March 2013 to present); and onychomycosis (rated 0 percent from March 2013 to present etc.). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). However, it is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service (Director), for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will 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). In July 2021, the Board remanded the issue of entitlement to an extraschedular TDIU for referral to the Director, and in August 2021 the Director provided an opinion. Therefore, the Board may proceed to decide this issue on the merits. See 38 C.F.R. § 4.16(b) An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran completed high school and one year of online technical college. Before entering active service, he worked for three years as a car stereo salesman. He has not worked since separating from active service. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his PTSD. In August 2014, the Social Security Administration obtained a residual functional capacity assessment. VA provided examinations in April 2014 and December 2016. In April 2021, the Veteran submitted a private psychological evaluation and in May 2021 he testified at a hearing before the Board. The August 2014 SSA examiner interviewed both the Veteran and his wife and reviewed the Veteran's medical records. The Veteran reported isolating at home, only going out to train his service dog. He used the computer and television but was unable to concentrate long enough to finish a show or complete most tasks. He stated that some words will send him into unexpected crying spells. The Veteran's wife stated that he doesn't sleep much most nights because of nightmares. She reported that he doesn't do anything without prompting, to the point that she has to work to motivate him to shower and get dressed daily, she monitors his medications, and she has to prepare food for him, or he will not bother to eat, even though he is physically capable of preparing food. She reported that the Veteran had no social activities or hobbies outside of training his service dog and that he didn't have the attention span to watch television shows. When people came to their house, he would greet them but then retreat to his room and avoid interaction. She was not sure how often he experienced flashbacks but stated they were severe enough for her to notice them once or twice per week. The SSA examiner opined that the Veteran's PTSD would cause moderate limitation of memory, ability to carry out very short/simple instructions, ability to sustain an ordinary routine without special supervision, ability to work in coordination with or proximity to others without being distracted by them. They opined that PTSD would cause marked limitation of the Veteran's ability to carry out detailed instructions, ability to maintain attention and concentration for extended period, ability to perform activities within a schedule, ability to maintain regular attendance and be punctual within customary tolerances, ability to complete a normal workday or workweek without interruption from psychologically based symptoms, and ability to perform at a consistent pace without unreasonable number and length of rest periods. The SSA examiner further opined that the Veteran's mental status was fragile, his functioning unreliable, and the severity of his impairment was such that it would likely preclude adequate performance of routine tasks, tolerance of ordinary work like stressors, and sustainability commensurate with that which is commonly found in most competitive environments. The Veteran would be unable to maintain attention and concentration for two hours at a time during an eight-hour workday. His anxiety, irritability, and social discomfort would also prevent him from taking directions from a supervisor or adequately functioning in an environment that isn't highly structured, supportive, and sheltered. Otherwise, the SSA examiner opined, data analysis indicates that dysfunctional behaviors and/or decompensations can be anticipated. The April 2014 VA examiner met with the Veteran and reviewed his medical records. They noted the Veteran's self-reported PTSD symptoms including recurrent, involuntary, and intrusive distressing memories and dreams of his stressor, dissociative reactions (e.g., flashbacks), intense or prolonged psychological distress at exposure to internal or external cues related to his stressor, marked physiological reactions to internal or external cues related to his stressor, avoidance of or efforts to avoid distressing memories, thoughts, or external reminders related to his stressor, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, problems with concentration, chronic sleep disturbance, and anxiety. The examiner noted that these symptoms were endorsed by the Veteran as being at least moderately sever but could not be independently verified with impartial third-party evidence. There was almost no narrative information included to elaborate on the noted symptoms. The examiner opined that the Veteran's PTSD caused only occupational and social impairment with reduced reliability and productivity. The December 2016 VA examiner met with the Veteran and reviewed his medical records. They diagnosed PTSD and attention deficit hyperactivity disorder (ADHD), then opined that ADHD symptoms were relieved by medication and anxiety and depression symptoms were related to the Veteran's PTSD exclusively. The examiner noted the Veteran's self-reported PTSD symptoms including recurrent distressing dreams related to his stressor, avoidance of or efforts to avoid distressing memories, thoughts, or external reminders related to his stressor, persistent, distorted cognitions about the cause or consequences of his stressor that lead him to blame himself or others, markedly diminished interest or participation in significant activities, hypervigilance, exaggerated startle response, depressed mood, and anxiety. The Veteran reported nightmares waking him about twice per week and being unable to return to sleep when this occurs, often leading to sleeping during the day. He also reported unpredictable crying spells triggered by reading certain words. The examiner opined that the Veteran's PTSD caused only occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The April 2021 private examiner met with the Veteran and his wife and reviewed the Veteran's medical records. They diagnosed PTSD with secondary diagnoses of major depressive disorder and panic disorder and opined that PTSD alone would cause total social and occupational impairment. They noted the Veteran's self-reported symptoms including recurrent, involuntary, and intrusive distressing memories and dreams of his stressor, dissociative reactions (e.g., flashbacks), intense psychological distress and physiological reactivity at exposure to internal or external cues related to his stressor, avoidance of or efforts to avoid distressing memories, thoughts, or external reminders related to his stressor, inability to recall important aspects of his stressor, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, chronic sleep impairment, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, mild memory loss, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control. Objective testing confirmed short term concentration and memory deficits. The Veteran and his wife both reported frequent nightmares interrupting his sleep. The Veteran reported avoiding leaving the house to avoid the anxiety and embarrassment of experiencing a panic attack in public. The examiner administered objective psychological tests including the Rey 15 item memory test, Beck Depression Inventory 2, and MMPI-2 Keane Military PTSD Scale. Based on interpretation of the results, the examiner opined that the Veteran was unable to function around others without significant anxiety and that his lack of restorative sleep caused impairment of memory and concentration to the point that he lacks sufficient motivation to carry out activities of daily living or complete work assignments. They further opined that the Veteran's near continuous PTSD symptoms markedly impaired his ability to stay on task and adapt to a work setting. The examiner opined that the Veteran's PTSD makes him unemployable. At his May 2021 Board hearing, the Veteran testified that he has regular sleep disturbance and nightmares and never knows how much, if any, sleep he will get on a given night. He stated that about twice per month he will go two nights in a row without sleep. He reported panic attacks about once per month, mentioning a recent occurrence where he had to take his service dog to a store bathroom and isolate when he tried to go shopping. He stated that he reduces his number of panic attacks by avoiding leaving his house. In terms of employment, he had tried helping his brother-in-law with a plumbing business as a favor but found that hid unpredictable sleeping and panic symptoms made him unable to reliably show up for jobs. The same problem has prevented him from being able to keep a schedule in general. The Veteran's ability to secure and follow a substantially gainful occupation is not significantly impacted by the physical effects of his plantar fasciitis or onychomycosis. Given the forgoing, the Veteran's service-connected PTSD precludes him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history. While the VA examiners from April 2014 and December 2016 opined that the Veteran's symptoms were relatively mild, the Board finds the opinions and information offered by the August 2014 SSA examiner and the April 2021 private examiner more persuasive. Both the SSA examiner and the private examiner included considerable narrative description of the Veteran's symptoms and their effect on his daily life and ability to perform the activities required to succeed in a competitive labor market. The April 2014 VA examiner included little to no narrative explanation, simply checking boxes, stating that they could not confirm most of the claimed symptoms from third party sources, and then offering a conclusory opinion as to the severity of the Veteran's symptoms. The December 2016 VA examiner, as noted above, listed a diagnosis of ADHD, treated by medication. While they stated that they were giving the Veteran the benefit of the doubt and assigning all active symptoms to the Veteran's PTSD, the tone of the opinion indicated a belief that the Veteran's ADHD predated service and was responsible for his concentration and memory related deficits. This raises at least the appearance of potential bias in the examiner's opinion. The examiner also failed to provide much narrative to support the conclusory opinion that the Veteran's PTSD caused only minor impairment. In contrast to the VA examiners, both the SSA examiner and the private examiner included narratives illustrating the effect of the Veteran's symptoms on specific areas of function necessary for succeeding in a competitive work environment, gave specific opinions on individual areas, and outlined the relationship between the Veteran's symptoms and the resulting impairment in his ability to secure or follow a substantially gainful occupation. The Board therefore finds the probative value of the SSA and private examiners' opinions to be much greater than those of the VA examiners. They were also consistent with the Veteran's treatment records and his testimony that there are periods most months when he does not sleep for up to forty-eight hours. The Board finds that the Veteran's PTSD symptomatology, specifically the effect of his severe chronic sleep impairment on his ability to concentrate, remember and understand tasks, and adhere to a normal attendance and work schedule policy, prevents him from securing or following a substantially gainful occupation. Accordingly, an extraschedular TDIU is warranted. See 38 C.F.R. § 4.16(b). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.