Citation Nr: A21020245 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 190308-4183 DATE: December 20, 2021 ORDER New and relevant evidence having been submitted, the request to readjudicate the claim for entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to a TDIU effective July 15, 2011 is granted. FINDINGS OF FACT 1. In July 2018, the Veteran elected the supplemental claim lane when he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form; in support of his claim for entitlement to a TDIU he provided new and relevant evidence at the same time. 2. Resolving reasonable doubt in favor of the Veteran, his service-connected posttraumatic stress disorder (PTSD) precludes him from following and securing substantially gainful employment. CONCLUSIONS OF LAW 1. New and relevant evidence has been submitted to readjudicate the claim for entitlement to a TDIU. 38 C.F.R. § 3.2501. 2. The criteria for entitlement to a TDIU effective July 15, 2011 have been met. 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to November 1970. In July 2018, the Veteran elected the supplemental claim lane when he opted into the AMA review system by submitting a RAMP election form. In March 2019 the Veteran elected the Hearing with a Veterans Law Judge (VLJ) lane on his Board appeal of the January 2019 rating decision. The Veteran was given a hearing before a VLJ in January 2021. A transcript of the hearing is associated with the electronic claims file. I. New and Relevant Evidence VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). Relevant evidence is evidence that "tends to prove or disprove a matter at issue in a claim." 38 C.F.R. § 3.2501. The new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard under 38 C.F.R. § 3.156(a). Id. 1. New and relevant evidence has been submitted to readjudicate the claim for entitlement to a TDIU. The Veteran initially indicated that his service-connected PTSD was causing unemployability in July 2011. See July 15, 2011 statement. Thereafter in April 2012 he submitted an application for a TDIU. The Veteran indicated that he was unable to work due to his PTSD and Crohn's disease which was secondary to his PTSD. In a May 2013 rating decision, the RO denied service connection for Crohn's disease and entitlement to a TDIU. New and material evidence was submitted within a year of the May 2013 rating decision. A February 2014 rating decision continued the denial. A review of the evidence shows that the Veteran appealed the issue of entitlement to a TDIU, and his representative submitted a document indicating that he was also appealing the issue of entitlement to service connection for Crohn's disease. However, a July 2015 statement of the case was issued for only the Veteran's PTSD evaluation and TDIU claim. Initially, the Veteran appealed these issues to the Board, but in July 2018 he opted into the AMA review system requesting the supplemental claim lane. Along with his RAMP election form, the Veteran provided copies of VA treatment records from June and July 2018 showing that his irritable bowel syndrome (IBS) was interfering with his ability to engage in gainful employment. The Board notes that in April 2018, the RO issued a rating decision granting service connection for IBS. This evidence is new in that it was not previously available, and it is relevant in that it tends to prove unemployability. Accordingly, the Board finds that new and relevant evidence has been received and readjudication of the claim for entitlement to a TDIU is warranted. II. TDIU 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 disabilities shall be rated totally disabled. See 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." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. 2. Entitlement to a TDIU. The Veteran is currently service connected for PTSD, evaluated at 70 percent (effective July 15, 2011), and IBS, evaluated at 30 percent, for a combined total rating of 80 percent. Thus, the Veteran meets the initial threshold requirement for a TDIU. Turning to the second requirement, as noted above, the Veteran initially indicated that his PTSD was causing unemployability in July 2011. Thereafter in April 2012 he submitted an application for a TDIU, contending that he was unable to work due to his PTSD. Under the remarks section of his application the Veteran also noted "PTSD and chrones [sic] disease secondary to PTSD." The Veteran listed the date he last worked full time and the date he became too disabled to work as May 31, 2011; and reported a 2-year college education. His last employment was at a county school as a custodian. VA Form 21-4192 completed by the Veteran's former employer noted his last date of employment was May 31, 2011. In conjunction with this claim, the Veteran was given a VA examination for his PTSD in March 2012. Here, the examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. His symptoms were noted as depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, flattened affect, disturbances in 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. With regard to employability, the examiner opined that the Veteran's symptoms within interpersonal relatedness were moderate to severe impairing the Veteran's ability to work cooperatively and effectively with coworkers. While his symptoms within attention, concentration, and memory, and motivation and drive were only mild to moderate. In support of his claim the Veteran provided several letters from his friends and family indicating that his symptoms have worsened throughout the years, causing an inability to deal with stress and constant worry, as well as requiring his wife to spend significant time as his caregiver. The Veteran and his wife also wrote about how the symptoms of his Crohn's disease of nausea and diarrhea have made it impossible for him to work. A request for employment from the Veteran's last employer indicates that he retired from his job. However, through his written statements and at this hearing the Veteran testified that he stopped working after his hours were changed and he had to complete his cleaning tasks while children were around causing him significantly more stress due to his PTSD. The Veteran provided a letter from a prior school supervisor noting that he was uncomfortable in crowds, needed to go outside a few times a day to calm his nerves, and had a few "flare ups" with his temper, including one where abusive language was used on a coworker. In April 2018 the Veteran was given a VA examination for his IBS. Here, the examiner noted that the Veteran requires continuous medication for his condition and has frequent diarrhea, as well as cramping and bloating. The examiner opined that this condition impacts the Veteran's ability to work and noted that the "Veteran worked as a custodian at an elementary school and had to stop working due to GI symptoms. 'I can't leave the house.'" At his hearing the Veteran testified that he missed several hours and sometimes days of work due to his IBS symptoms. The Veteran also testified about his struggle throughout the years with being around and working with other people, including a physical altercation and walking off several jobs. The Board finds the Veteran to be a competent and credible witness; his statements as well as those by his friends and family appear to be consistent with the available medical evidence. It is clear that the combination of symptoms caused by the Veteran's PTSD and IBS preclude work. However, the Board notes that the Veteran was not service connected for IBS until April 2018, with an effective date of August 3, 2017. Nevertheless, the Board is persuaded that the symptoms caused by the Veteran's PTSD alone precluded employment. The March 2012 VA examiner's opinion regarding the Veteran's moderate to severe symptoms within the interpersonal relatedness category is consistent with the Veteran's reported employment struggles. Moreover, his general PTSD symptoms of depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, flattened affect, disturbances in 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, more likely than not render the Veteran unemployable. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service-connected PTSD preludes him from securing and following substantial gainful employment. Accordingly, entitlement to a TDIU effective July 15, 2011 is granted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.