Citation Nr: A21019232 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 210728-175484 DATE: December 2, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1962 to December 1965, January 1966 to September 1974, and September 1974 to March 1983, to include service in the Republic of Vietnam. The Veteran's awards and decorations for his service include the Purple Heart and the Vietnam Cross of Gallantry, among others. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the July 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, and 90 days following receipt of the VA Form 10182. 38 C.F.R. § 20.302(a). Entitlement to a TDIU The Veteran asserts he is entitled to a TDIU. Specifically, he contends that he is unemployable as a result of the combined effects of his service-connected disabilities, to include his diabetes mellitus and heart disorder. In a February 2021 statement submitted by the Veteran, he reported that he had undergone a triple bypass surgery in September 2006. After his surgery, the Veteran reported he required the help of his spouse to assist him in his business. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, 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). Rating boards should submit to the Director of Compensation Service for extraschedular 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). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the instant case, service connection is currently in effect for posttraumatic stress disorder (PTSD) rated as 70 percent disabling from September 30, 2019; status post coronary arterial bypass surgery with left carotid arteriosclerosis with stenting associated with diabetes mellitus type II with peripheral arterial disease (hereinafter a "heart disorder") rated as 30 percent disabling from October 31, 2006; diabetes mellitus type II with peripheral arterial disease rated as 20 percent disabling from April 7, 2003; chronic low back pain with early degenerative arthritis of the lumbosacral spine rated as 10 percent disabling from April 1, 1983; tinnitus rated as 10 percent disabling from July 23, 2007; osteoarthritis of the left shoulder rated as noncompensable prior to September 28, 2011, and 10 percent thereafter; erectile dysfunction rated as noncompensable from October 31, 2006; surgical scars on the left neck rated as noncompensable from October 31, 2006; left leg vein graft scar rated as noncompensable from October 31, 2006; bilateral hearing loss rated as noncompensable from July 23, 2007; and scar of the left shoulder rated as noncompensable from September 28, 2011. The Veteran's combined rating for the relevant period on appeal is 60 percent prior to September 30, 2019 and 90 percent thereafter. Thus, the schedular criteria for a TDIU have been met for the entire relevant period on appeal. Turning to the evidence, of record is an August 2019 private psychiatric evaluation submitted by Dr. W.A. At that time, Dr. W.A. noted the Veteran had occupational problems that were described as "other psychosocial and environmental problems," and was totally impaired occupationally and socially. The Veteran reported he was required to stop working as a truck driver in 2008 as a result of his diabetes mellitus type II, intolerance for people, having problems with authority figures, physical altercation, and intolerance for customers. Additionally, Dr. W.A. noted the Veteran had three heart attacks. This provider noted the Veteran was unable to describe his typical mood state which was consistent with alexithymia. Other symptoms were reported to include anhedonia, concentration problems, significant experiences of fatigue and loss of energy and cognitive difficulties, including the diminished ability to think and indecisiveness were apparent. The Veteran also reported a pattern of excessive anxiety and worry, largely in the form of apprehensive expectation, occurring more days than not for at least six months and that he experienced troubles with controlling the worry, restlessness and edginess, fatigue, troubles with concentration, irritability and sleep disturbances. The Veteran was afforded a VA examination in December 2019 for his PTSD. At that time, the examiner found the Veteran did not have a diagnosis for a mental disorder. In pertinent part, the Veteran reported that his primary career field included truck driver and he owned his own truck and would lease his truck with two different trucking companies. He contracted with one company for 12 years and worked full-time and he discontinued his contract with this company for "better pay." He reported he contracted with the second company for 12 years, that he worked full-time, and that he discontinued his contract because of the decline of the economy and they wanted him to work for less pay. The Veteran denied any issues with chronic absences, chronic tardiness, productivity, and/or significant conflicts with coworkers. He denied promotions or demotions, and verbal or written demands. At his December 2019 VA examination, the Veteran reported symptoms that included some chronic sleep impairment, depression, anxiety, worrying, and irritation. He denied symptoms of problems with concentration, avoidance symptoms, and any legal problems. The VA examiner remarked that the Veteran did not meet the criteria for a mental health condition, including PTSD; the Veteran reported mild symptoms of depression that did not rise to a level to impact social and/or occupational functioning, and was related to personal psychosocial stressors, specifically the health of his wife and finances. Additionally, the VA examiner noted the Veteran he had contracted as a truck driver for two trucking companies and did not have significant occupational functioning issues. In an April 2020 addendum submitted by Dr. W.A., in pertinent part, Dr. W.A. noted the Veteran worked full time as a trucker until 2008 when he was "forced to stop driving as a result of his difficulties with diabetes." Occupational problems included reports from the Veteran's spouse that the Veteran "tried to get off the road a couple of times," working alternative positions for three to four days at a time, left a job after being required to have steel toed shoes, engaging in a verbal conflict with a customer, and "bump[ing] heads" with a coworker. The Veteran's spouse reported the Veteran would become angry over "nothing," and poor judgment and concentration problems were observed. In support of his claim, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. See VA Form 218940, February 2, 2021. The Veteran indicated his diabetes mellitus and heart disorder prevented him from securing or following any substantially gainful occupation. He reported he earned $140,000.00 as the maximum amount he had earned as self-employed owner and truck driver, with expenses related to being an owner-operator deducted from that amount. His highest level of education completed was the eighth grade, and a General Educational Development (GED) diploma during active service. Here, the evidence is supports a finding that the Veteran is precluded by his service connected disabilities from obtaining and maintaining any form of gainful employment consistent with his education, experience, and skillset. The Veteran's highest level of education and current employment status and/or employment history is discussed above. During service, the Veteran's military occupational specialty (MOS) included laundry worker, motor transport operator, tractor-trailer truck driver, vehicle repairman, and light wheel vehicle and power generation mechanic. The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The private opinions submitted by Dr. W.A. in August 2019 and her April 2020 addendum. This provider noted the Veteran had an intolerance for people, having problems with authority figures, physical altercation, and intolerance for customers; and found the Veteran was totally occupationally and socially impaired. This provider noted the Veteran's reports of psychiatric symptoms and the effects of such in combination of his physical impairments on his occupational functioning. Moreover, in her April 2020 addendum, this provider noted the reports from the Veteran's spouse regarding the impact of his physical impairments on working as a truck driver, and his inability to wear steel toed shoes in subsequent employment, as well as his interpersonal conflicts with coworkers and customers. The Board has carefully considered the Veteran's statements, and the medical evidence of record, regarding the combined effects of his PTSD, diabetes, and heart disorder as it impacts his employment. The Board concludes that the Veteran experienced significant limitation as a result of the combination of his service-connected PTSD, diabetes mellitus, and heart disorder, and that the combined effect of these disabilities impacted his daily functioning and earning capacity that rendered the Veteran unable to secure or follow a substantially gainful occupation. Generally, the fact that he was having impairments or difficulties does not provide a basis to grant TDIU. However, based on the evidence as discussed above, the Board notes the combined effects of his psychiatric limitations and the physical impairments as a result of his physical symptoms, to include requiring pulling over during work and inability to wear certain shoes, render the Veteran essentially unemployable in all employment settings. Additionally, the Board acknowledges the Veteran's statements that his diabetes symptoms resulted in an inability to work as a truck driver due to requiring pulling over while driving and needing accommodations in other positions at work for several days. Although the Veteran maintained employment full time as a self-employed truck driver until he felt he was no longer physically capable, he continued to try to attempt work but could not work due to being required to wear steel-toed shoes. Therefore, based on the foregoing, the Board finds that the combined effects of the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation and entitlement to a TDIU is warranted. To that extent, the appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.