Citation Nr: 21005605 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-44 948 DATE: February 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is granted, effective May 12, 2014. FINDING OF FACT The evidence is at least evenly balanced that, since May 12, 2014, the Veteran’s service-connected disabilities have prevented him from securing and following a substantially gainful occupation. CONCLUSION OF LAW Since May 12, 2014, the criteria for a total disability rating based on individual unemployability due to service-connected disorders (TDIU) have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b), 3.340, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. This case came to the Board from a March 2015 decision of the Agency of Original Jurisdiction (AOJ). The Board denied this claim in March 2019. After the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), counsel for both parties filed a Joint Motion for Remand (JMR), in which they agreed that, in its March 2019 decision, the Board failed to adequately explain its denial of a TDIU rating. By granting the parties’ JMR, the Court vacated the March 2019 Board decision and returned this issue to the Board. Since the Court returned this case to the Board, the Veteran’s attorney has submitted new evidence, including the report of a psychiatrist in private practice who interviewed the Veteran in October 2020 and copies of the most recent VA treatment records. Through his attorney, the Veteran waived his right to have this appeal remanded for the purpose of arranging for the AOJ consider this new evidence before further action by the Board. Analysis VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran’s earned annual income is below the poverty threshold and in other limited circumstances. Id. For the period since March 12, 2014, the Veteran has been awarded compensation for the following service-connected disabilities: (1) posttraumatic stress disorder (PTSD) (rated as 70 percent disabling); (2) diabetes mellitus type II (rated as 20 percent disabling); (3) tinnitus (rated as 10 percent disabling); (4) peripheral neuropathy of the left lower extremity (rated as 10 percent disabling); (5) peripheral neuropathy of the right lower extremity (rated as 10 percent disabling); and (6) bilateral hearing loss (rated as zero percent disabling). For this period, he has at least one disability rated as 60 percent or more and combined rating of 70 percent or more. Thus, he meets the schedular requirements of 38 C.F.R. § 4.16(a). In his application for TDIU, the Veteran wrote that his service-connected PTSD, diabetes and related complications prevented him from working. He indicated that he had not worked since 2012, when he stopped working as an industrial mechanic after approximately forty years. Information obtained by the AOJ from his most recent employer confirmed the Veteran’s statements about the timing of his retirement. In its vacated March 2019 decision, the Board found that the Veteran’s PTSD and complications from diabetes, including peripheral neuropathy, did not prevent him from working. The Board emphasized the Veteran’s ability to work steadily as an industrial mechanic for many years, in spite of his PTSD, until he became eligible for retirement. The decision also assigned some weight to a statement the Veteran apparently made to a VA examiner in May 2016 indicating that “he wanted to keep working, but he feels that his physical pain caused him to stop working.” In the JMR, the parties criticized the March 2019 decision for ignoring another piece of information from the same May 2016 examination report – i.e., a statement from the examining psychologist that, “it is my clinical opinion that the veteran would not be able to successfully function in a work environment. He is uncomfortable around social situations and his chronic pain makes physical assertion difficult, if not impossible. This physical impairment serves to worsen his psychological health, as well.” In October 2020, the Veteran was interviewed by a psychiatrist in private practice who prepared the report recently submitted to the Board by his attorney. This report includes summaries of the Veteran’s military service, his PTSD diagnosis and symptoms, and his work history as an industrial mechanic. It also reviews the information in the earlier VA examination reports, in the VA treatment records, and includes a summary of the psychiatrist’s interview with the Veteran. In the psychiatrist’s opinion, although the Veteran was able to work for many years in spite of his PTSD symptoms, those symptoms worsened significantly after he retired, in part because work had been “one of his primary coping mechanisms.” According to the report, “[the Veteran’s] symptoms began when he returned from Vietnam, but he has been able to distract himself with work until he was forced to retire.” The report then correctly summarizes the psychiatric symptoms noted in the Veteran’s post-retirement VA examination reports – including depression, anxiety, suspiciousness, panic attacks, impaired sleep, memory loss, difficulty with interpersonal relationships, difficulty adapting to stress, suicidal ideation, and intermittent trouble performing basic hygiene tasks. The October 2020 report agreed with the February 2015 VA examiner that, “if [the Veteran] were working today, difficulties encountered at work that could be attributed to PTSD effects include concentration and memory difficulties, distancing, and possible conflict with coworkers due to his irritability and low frustration tolerance.” In the opinion of the private psychiatrist, “even if his orthopedic conditions had spontaneously resolved, the severity of his PTSD would have prevented him from returning to the workforce due to his loss of focus and concentration, ongoing suicidal ideation, problems with anger, and increasing social isolation.” This opinion is largely consistent with information in the most recently submitted VA treatment records, which consistently describe memory loss, difficulty concentrating and suicidal ideation. Based on the information available to the Board in March 2019, there may have been some uncertainty as to whether service-connected psychiatric symptoms or non-service-connected orthopedic symptoms, or a combination of these, should properly be considered the cause of his inability to work. But there is now a medical opinion, consistent with the other evidence and supported by a clear explanation, attributing his unemployability to service-connected PTSD symptoms alone. Because of his service-connected psychiatric symptoms, the Board finds that the evidence is at least in equipoise as to whether service-connected disabilities have prevented the Veteran from securing and following a substantially gainful occupations since May 12, 2014. In the most recent brief submitted by the Veteran’s attorney, he expressly asked the Board to assign May 12, 2014 as the effective date of the requested TDIU award. Under these circumstances, the Board will not consider an earlier effective date. Applying the Board’s duty to resolve reasonable doubt in the Veteran’s favor, see 38 C.F.R. § 4.3, the Veteran has been eligible for a TDIU rating since May 12, 2014 (the date of receipt of his claim for TDIU). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.