Citation Nr: A21020190 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 210603-163877 DATE: December 17, 2021 ORDER Entitlement to total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disability as likely as not precluded gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1996 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) from an April 2021 Department of Veterans Affairs (VA) regional office (RO) decision which denied entitlement to TDIU. In June 2021 the Veteran filed a notice of disagreement (NOD) VA Form 10182, Decision Review Request: Board Appeal, and elected the Evidence Submission docket and submitted evidence at the same time as the NOD. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim for TDIU, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to individual unemployability. A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. With respect to the claim of TDIU, at the time of the April 2021 rating a 70 percent rating was in effect through the appeal period. The Veteran has been service-connected for major depressive disorder with anxious distress to include TBI, evaluated as 70 percent disabling effective August 30, 2007; gastroesophageal reflux disease (GERD), evaluated as 10 percent disabling effective January 8, 2013; and residual scar of the right forearm rated as 0 percent disabling as of December 15, 2018. Thus the schedular rating criteria for TDIU has been met. Occupationally, the Veteran reported in his December 2020 VA 21-8490 Application for TDIU benefits that TDIU claim that he worked as a launch and recovery mechanic from March 2008 to June 2020, having last worked in June 2020. His highest earnings were $80,000 annually in 2010. He reported that his disability affected full time employment starting in February 2016. He cited his major depressive disorder with anxious distress to include TBI as the lone factor affecting his employability. After review of the evidence the Board finds that it is at least in equipoise as to whether the Veteran's service-connected disabilities result in impairment that precludes substantial gainful employment. In making this finding, the Board lends the most probative weight to the findings from a June 2021 vocational evaluation from a private vocational expert, F.F., submitted in the evidence window with his NOD. This expert provided a vocational opinion finding that the Veteran's symptoms from his service connected psychiatric prevented him from securing and following substantially gainful employment, including sedentary work, since at least June 2020, continuing to present. This opinion was based on a comprehensive review of claims file records, including medical records, and examination reports available for review at the time of the evaluation. The vocational expert who included his curriculum vitae documenting his training and experience as a vocational rehabilitation counselor confirmed review of claim file in its entirety and conducted a telephonic vocational assessment interview of the Veteran. The examiner noted that during the interview the Veteran was frequently distracted answering questions and frequently veered off topic. This required the vocational consultant to pause the interview on multiple occasions to redirect and refocus the Veteran to remain on subject matter being discussed. The evaluator stated that since least June 2020 the Veteran's service connected major depressive disorder with anxious distress to include TBI has caused chronic psych symptoms, to include hypervigilance with chronic suspiciousness, the tendency to isolate and avoid the general public, depressed mood with impaired motivation, a history of suicidal ideations, panic attacks and unprovoked anger and irritability. The Veteran's symptoms since June 2020 were noted to render him distracted and unable to concentrate. He also did not trust anybody. His suspiciousness increased outside the home. He described a chronic need to isolate as a coping mechanism for his service-connected psychiatric disorder and associated symptoms. He preferred to be alone and isolated due to due to depressive and intrusive thoughts which compromises his motivation to perform any activity and causes him to remain in isolation. He also reported irritability and anger due to his psychiatric disorder, and impaired judgment and impulse control associated with TBI. He had very bad anger problems. He liked to fight but tries to punch a punching bag. He reported that he had to be talked out of beating up dentist who damaged his teeth. He also reported a lack of desire to perform tasks, interact with others or perform activities he previously enjoyed. He also reported a prior history of suicidal ideation and thought of killing people he disliked. He also had chronic sleep problems and daytime somnolence with compromised ability to concentrate. He cannot focus and also has memory issues. He had to write things down to remember. In the interview he frequently veered off topic, forgot questions and had to have questions rephrased due to his impaired concentration and recall. Regarding daily activities since at least June 2020, he infrequently drove due to psychiatric and daytime somnolence. He feared getting into an accident. He infrequently tended to hygiene due to impaired motivation and showered twice a week but sometimes would go for a couple weeks without a shower. He rarely did laundry or housework due to symptoms. Educationally, he was a high school graduate and had an associate degree in sports management earned online in 2009. He has not worked in any capacity applying his degree. Vocationally he was employed as a launch and recovery mechanic for the U.S. Navy base between March 2003 and June 2020. He worked on aircraft carriers, tested the catapult mechanisms, and maintained and manufactured the components. Occupationally, he reported difficulty interacting with coworkers and got into conflicts with them. He was written up a bunch of times and was also frequently tardy. He resigned in June 2020 in lieu of termination. He only stayed as long as he could because he worked hard. The vocational expert opined that it is at least as likely as not that the Veteran has been unable to secure or follow substantially gainful employment, regardless of skill or exertional level since at least June 2020 to present due to symptoms associated with major depressive disorder with anxious distress to include TBI. Specifically he has been unable to satisfy the standards of adequate pace, productivity, reliability, and workplace communication solely due to his major depressive disorder with TBI . His hypervigilance, suspiciousness of others, anxiety, panic attacks, and intrusive thoughts distract him. His symptoms cause a tendency to isolate, impaired impulse control and increased irritability which would impede his ability to appropriately interact with coworkers and supervisors. He had concentration and memory impairments which impair his ability to complete his tasks efficiently, independently and without errors. Having reviewed the evidence, the Board finds that it is in equipoise as to whether the Veteran's service-connected bilateral foot disabilities result in an inability to obtain and maintain substantially gainful employment. As discussed above, the Board has adopted the June 2021 opinion from vocational expert F.F. who determined that the psychiatric disorder prevented him from securing and following substantially gainful employment, including sedentary work, since at least June 2020, continuing to present. Furthermore, other evidence prior to the April 2021 TDIU adjudication tends to support rather than directly contradict this opinion of his psychiatric disability. This includes a February 2021 VA psychiatric disorders examination which diagnosed a PTSD, and in pertinent part stated that the Veteran he has been unable to effectively adapt to a worklike environment in terms of maintaining effective work relationships and consistently displaying socially adaptive behaviors, in terms of maintaining productivity and pace, and in terms of being a reliable and consistent employee due to the chronic symptoms of his service connected condition that are identified in this exam. Prior to the April 2021 TDIU rating, an April 2021 mental disorders examination other than PTSD diagnosed major depressive disorder with anxious distress and included a history of the Veteran losing his job in July 2020 after he lost a security clearance with his civilian job as a mechanic for the Navy, and was often late due to his sleep issues. The attendance issues did not help with his security clearance. Although this examination did not fully describe the Veteran having total occupational impairment, the examination did confirm a degree of occupational impairment due to psychiatric symptoms, having described the Veteran as having occupational and social impairment with deficiencies in most areas. VA treatment records from 2020 after he lost his job show that in December 2020 the Veteran reported that he has been always angry, depressed and unable to get along with people. He complained of quick anger and was upset that he lost his job. He had periods of anger daily approximately twice a day lasting for 1 to 2 hours. He attributed his anger due to not being happy and being frustrated with his life. Alcohol increased his anger. Anger led to his anxiety or triggered by anxiety. At times he punched walls and in the past, he liked to have physical fights. He managed his anger by trying to work out and likes punch boxing bags in the gym. In the assessment the examiner stated that this interview was not the easiest because of the Veteran's emotional presentation and quickly switching from symptom cluster to symptom cluster and back. He reported that he has been depressed a lot most of the time. He stayed at home and mostly watched TV. He complained of low energy, low interest, and low motivation. He had poor sleep with early middle and terminal insomnia. He complained of poor concentration. He was also noted to be drinking heavily over the weekends and had lost his license due to DWI. Even prior to his losing employment in June 2020, the records showed the Veteran as having occupational issues due to his psychiatric symptoms that had been noted by the vocational expert. This includes a March 2012 psychotherapy record noting a dramatic work conflict where he knocked his supervisor's door off its hinges after he thought he was being punished for taking sick leave. An earlier mental health note in September 2011 also noted an anger outburst where he punched a wall. Sleep and memory issues were noted to cause him to miss appointments as reported in January 2014. In light of the above evidence, with the vocational expert determining the Veteran to be unemployable due to his psychiatric symptoms, with supportive evidence in the psychiatric records documenting the symptoms described as causing negative occupational impacts, the Board finds that it is as likely as not that the Veteran is not capable of substantially gainful employment due to his service-connected disabilities. Accordingly, a TDIU is warranted throughout the appeal period. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.