Citation Nr: 21077413 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-59 696 DATE: December 29, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether posttraumatic stress disorder (PTSD) disables the Veteran from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1952 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before a Veterans Law Judge (VLJ) other than the undersigned VLJ. A transcript of that hearing is of record and has been reviewed. The VLJ who presided over the hearing is not available to render decisions on issues on appeal. The Board notified the Veteran that it could adjudicate his claim without a second hearing or could convene a new hearing before another VLJ. In September 2020, the Veteran indicated that he did not want another hearing. The Board has remanded this matter on several occasions for additional development. TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of service-connected PTSD. Relevant legal authority It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16 (a). For the above purpose 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, or of 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). An extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). In such case, the Board refers the claim to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). A TDIU claim is "part and parcel" of an underlying increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; and whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence in this matter consists of VA treatment records, lay statements, and VA examination reports. The record indicates that the Veteran has not maintained employment since the late 2000s. The Veteran is service connected for one disability, which is PTSD rated as 70 percent disabling. The threshold requirement for the assignment of a schedular TDIU is therefore met here. See 38 C.F.R. § 4.16(a). Based on a review of the record, the Board finds that the evidence is in a state of relative equipoise regarding whether PTSD has prevented gainful employment. See 38 C.F.R. § 4.3. On the one hand, certain evidence indicates that the Veteran is not unemployable due to PTSD. The evidence shows that he had worked consistently from service until retirement. The Veteran reports that he worked full time until as recent as 2009 when he retired due to age, and worked prior to that as a school bus driver, school crossing guard, a salesman, and a clerk at a VA hospital. He also reported completing four years of college education. In a June 2016 VA examination report, the Veteran indicated that he also retired because of physical pain, mobility limitations, and fatigue related to later-diagnosed, nonservice-connected Parkinson's disease. At the July 2019 hearing the Veteran was asked do "you believe that your PTSD alone, today, prevents you from performing any type of work that is consistent, with your education?" He ultimately answered "no, not really, because now I have Parkinson's disease." Lastly, the VA treatment records indicate significant impairment from nonservice-connected cardiovascular disease as well as Parkinson's disease. The Board notes that a considerable amount of development has been expended to somehow link Parkinson's disease to PTSD, to no avail. Further, the Veteran has not asserted a claim of entitlement to service connection for the disorder. Nevertheless, certain evidence indicates PTSD disables the Veteran from gainful employment. The June 2016 VA report noted PTSD symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner further stated that with "regard to Veteran's ability to function in in an occupational environment: Due to his PTSD alone, he would likely have significantly more difficulty than the average person adapting to changes in the workplace, especially if required to concentrate and pick up on new procedures under time pressure. His health problems would likely add to his difficulties, seen as a source of fatigue." Similarly, an October 2019 VA report notes significant PTSD impairment. The report notes symptoms of anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, recurrent, involuntary, and intrusive distressing memories of traumatic event, persistent, distorted cognition about the cause or consequences of traumatic events that leads him to blame himself or others, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response, and problems with concentration. The examiner also noted varying degrees of functional impairment related to understanding and following instructions, retaining instructions as well as sustaining concentration to perform simple tasks, sustaining concentration to task persistence and pace, responding appropriately to coworkers, supervisors, or the general public, responding appropriately to changes in the work setting, and conforming behavior and controlling impulses. In sum, the evidence is divided with regard to whether the Veteran is disabled from gainful employment by PTSD. Certain evidence indicates that he has been able to work productively despite PTSD but had to retire due to other problems. Other evidence indicates that PTSD has caused him to be unemployable as noted in the June 2016 report, the Veteran has had difficulty in adapting to stressful circumstances, including work or a worklike setting. The evidence is thus in equipoise regarding whether service-connected impairment disables the Veteran from securing and following a substantially gainful occupation. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (responsibility for the ultimate TDIU determination is on VA not a medical examiner). Based on the foregoing, the Board cannot find that a preponderance of the evidence is against the claim of entitlement to a TDIU. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Havelka, 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.