Citation Nr: 21077386 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-22 744 DATE: December 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's service-connected disabilities have rendered him unable to obtain or maintain substantially gainful employment for the entire appeal period. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1973 to October 1975. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter comes before the Board on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, in his May 2017 VA Form 9 (Appeal to Board of Veterans' Appeals), requested a Board hearing by live videoconference. However, a hearing worksheet shows that the August 2021 hearing was cancelled. Thus, the Board considers the request for hearing withdrawn. See 38 C.F.R. § 20.704(d). Entitlement to a TDIU due to service-connected disabilities is granted. The Veteran maintains his service-connected disabilities render him unable to obtain and retain substantially gainful employment. In his June 2014 correspondence, the Veteran stated since military separation he has experienced problems with his feet and that because of the pain he can no longer stand on his feet for a long period of time. He stated his PTSD has affected every job he has performed. He described having difficulty maintaining effective relationships with his bosses and co-workers, and he experienced depressed mood, anxiety, and sleep impairment. He also stated that his hearing loss and tinnitus impaired his ability to communicate. In the October 2015 Notice of Disagreement, the Veteran stated that he has held over 60 jobs since leaving the military, and that the jobs ranged from car sales to factory work to government employee. He stated his left ankle tendonitis with DJD has made it impossible to stand or drive, and his PTSD has aggravated his ability to work. He stated that "when dealing with supervisor, co-worker and individuals I feel intense and distress with any type of social engagement." He described having held over sixty (60) jobs since being discharged from the Army, noting these jobs ranged from car sales, factory work, to being a government employee. He stated he felt intense distress with any type of social engagement, including interacting with supervisors, co-workers, and other individuals. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the Veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. 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). The sole fact a Veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence must show the Veteran is incapable of performing the physical and mental acts required by employment by reason of their service connected disability(ies). 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, Bureau of the Census, as the poverty threshold for one person. The noneconomic component includes consideration of the following: the Veteran's history, education, skill, and training; physical ability both exertional and non-exertional, to perform the type of activities required by the occupation at issue (e.g. sedentary, light, medium, heavy, or very heavy; and mental ability to perform the activities required by the occupation at issue. Given the term sedentary is defined as "doing or requiring much sitting," the Board finds that sedentary employment is a job where the worker primarily sits down. See MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (11th ed.) (2003). The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disabilities go to the question of physical or mental limitations that may impact the Veteran's ability to obtain and maintain employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for PTSD as 50 percent disabling, bilateral pes planus with DJD as 50 percent disabling, left ankle tendonitis with DJD as 10 percent disabling, bilateral hearing loss at 10 percent disabling, and tinnitus as 10 percent disabling. He has also been awarded service connection for septal deviation from fracture of the nose and sinusitis. The Veteran has met the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) since January 25, 2013. The remaining inquiry is whether he was unable to secure or follow substantially gainful employment due solely to his service-connected disabilities. In his June 2014 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported his service-connected hearing loss, left ankle injury, and PTSD prevents him from securing or following any substantially gainful occupation; the Veteran also reported a nonservice-connected condition of "right ankle injury." The Veteran reported completing two years of college. He had worked in a factory in 2001 and indicated that he left because of a disability. In his attached correspondence, the Veteran asserted his bilateral pes planus with DJD, and tinnitus also contribute to his unemployability. In July 2016, the Veteran submitted another VA Form 21-8940. On this form he indicated that two nonservice-connected disabilities (COPD and bronchopleural fistula) prevent him from securing or following any substantially gainful occupation. The Veteran stated that he last worked full time in 2001. Regarding his occupational history, the record reflects the Veteran was employed as a carpenter and worked in general construction and in general manufacturing. See June 2014 and July 2016 VA Form 21-8940. Thus, for the greater duration of his work history post-service, he has been engaged in more physical demanding employment as a carpenter and construction worker. Review of the claims file shows in October 1998, the Veteran submitted a Disabled Veterans Application for Vocational Rehabilitation. In March 1999, a VA Vocational Rehabilitation Counselor determined the Veteran's service-connected disabilities (tinnitus, impaired hearing, sinusitis, and nose deflection (septal deviation from fracture of the nose)) do contribute to the employability impairments because they place restrictions on the Veteran's preparation for and maintenance of suitable employment. The counselor noted the Veteran's employment history reflected he was self-employed as a carpenter. The counselor determined this type of employment was not suitable for his disability [hearing loss]. The counselor stated the Veteran must wear hearing aids to hear conversational sounds, but in noisy environments he must remove these aids which restricts his ability to communication. Additionally, the carpentry work was becoming dangerous for the Veteran because he could not hear warnings from co-workers; for example, the Veteran often has co-workers working overhead and cannot hear when objects are dropped from above. See Veteran Readiness and Employment (VR&E) file uploaded July 2017. The Veteran was afforded a PTSD examination in April 2014. The examiner diagnosed PTSD and alcohol use disorder and stated that it was not possible to differentiate the symptoms attributable to each diagnosis. He reported depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. The examiner concluded that there was occupational and social impairment with reduced reliability and productivity. He stated that he quit working in 2001 following Lyme's disease and its complications. The Veteran was afforded a VA hearing hoss and tinnitus examination in June 2014 and April 2015 to evaluate the nature and severity of his service-connected bilateral hearing loss and tinnitus. The June 2014 VA examiner found that the Veteran's hearing loss and tinnitus impacts ordinary conditions of daily life, including ability to work. Specifically, he had difficulty communicating with people, especially in loud, noisy areas. Also, his tinnitus interferes with communication; he noted intensity fluctuates. The April 2015 VA examiner also found that the Veteran's hearing loss and tinnitus impacts ordinary conditions of daily life, including ability to work. Regarding hearing loss, the Veteran reported difficulty understanding conversation; he noted he needs visual cues and if the speaker turns away from him, he does not 'get anything.' He stated his tinnitus seems to be louder; he noted it is a distraction and irritating. The Veteran was afforded a VA ankle examination in August 2015. He reported symptoms of constant underlying pain, intermittent swelling, weakness, and crepitus. The examiner noted the Veteran required the constant use of a cane for support. The examiner stated the Veteran's left ankle condition promotes issue with prolonged walking/standing, uneven surfaces, colder weather, hard surfaces, lifting heavy weight, pivoting, and squatting. The examiner concluded this imposes minimal restriction with sedentary employment and moderate restriction with physical employment. The Veteran was also afforded a PTSD examination in August 2015. The examiner observed the Veteran's symptoms include depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. In evaluating the criteria used for establishing the current PTSD diagnosis, the examiner noted 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 typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The examiner opined the PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner concluded that the PTSD resulted in occupational and social impairment with reduced reliability and productivity. The Veteran was afforded additional VA examinations in March 2016 to evaluate the nature and severity of his service-connected bilateral pes planus with DJD and PTSD. During the VA foot examination, the Veteran reported chronic foot pain, worsening with prolonged stand/walking, pain on manipulation of the feet, pain on weight-bearing, disturbance of locomotion, and interference with standing. Regarding functional impact, the examiner stated the Veteran is unable to perform prolonged walking or standing, and he displays poor propulsion. During the PTSD examination, the examiner noted that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In evaluating the criteria used for establishing the current PTSD diagnosis, the examiner noted markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from other, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, and sleep disturbance. The examiner opined the PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner concluded that the Veteran's PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Upon review of all lay and medical evidence, and after affording the Veteran the benefit of the doubt, the Board finds the Veteran's level of disability, given his education, training, and experience, would preclude him from obtaining or retaining substantially gainful employment based solely on his service-connected disabilities. Although there is evidence that suggests the Veteran might be able to complete sedentary work, the Board finds the August 2015 and March 2016 VA PTSD examinations persuasive as to the negative effects of the Veteran's service-connected PTSD on his functional capacity. The Board affords significant probative value to the Veteran's lay statements regarding the limitations caused by his service-connected disabilities. In addition, the hearing loss and tinnitus exams indicate complications with communication. Thus, the evidence indicates that his symptoms are severe enough to preclude even sedentary employment. In addition, the Veteran's service-connected bilateral pes planus with DJD and left ankle tendonitis with DJD impair his ability to stand, walk, crawl, climb, and lift due to chronic pain, weakness, swelling, instability. Furthermore, the Veteran's service connection left ankle tendonitis with DJD requires the use of an assistive device for support which impacts his ability to lift, carry, push, and pull. His career work as a carpenter, in general construction, and in general manufacturing, undoubtedly required working on hard, uneven surfaces, lifting and carrying, dextrous use of his hands, as well as the ability to stand, walk, and climb for many hours at a time. While the reason for the Veteran's departure from the work force is unclear, the nature and the severity of the Veteran's service-connected disabilities make it unlikely he would be able to perform the duties of an individual with his education and experience as a carpenter, general construction worker, and general manufacturer. Based on the foregoing, and after resolving all reasonable doubt in the Veteran's favor, the Board finds the evidence of record demonstrates that the symptomatology associated with his Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment for which he would otherwise be qualified. Therefore, the Veteran's claim for a TDIU is granted. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.