Citation Nr: 21005646 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-11 378A DATE: February 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran’s service-connected PTSD renders him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to October 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015 and July 2018, the Board remanded this issue for further development. Entitlement to a TDIU The Veteran seeks entitlement to a TDIU. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340.  Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Halstead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. 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, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).  In the current appeal, the matter of entitlement to TDIU was previously before the Board in October 2015 and July 2018. The October 2015 Board remand requested that the Veteran be afforded the proper notice for substantiating his TDIU claim and that he be sent an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The Board also asked that his Social Security Administration (SSA) records and disability decisions be associated with his claims file. In the July 2018 Board remand, the Board found that the Veteran’s VA Form 21-8940 was missing a complete employment history and remanded the TDIU matter to request that he complete and return another form with complete information and to ask that the RO contact the Veteran’s prior employers. The Veteran submitted an updated VA Form 21-8940 in September 2019 and a December 2018 statement that included prior work history, but noted that he believed both companies to be out of business and did not have an address for one of the former employers. The RO requested information from the other prior employer in May 2020 and received a response in June 2020 from the employer stating that they did not recall employing the Veteran. As the Board is granting the benefit requested, as the Veteran has not raised an issue with the development conducted, and as any further remand would be of little assistance as additional information appears to be unavailable, the Board will proceed with the adjudication of this claim. Here, the Veteran is currently service connected for PTSD, rated 30 percent from January 23, 2009, and 70 percent from November 25, 2009. This disorder is his only service-connected disability. Accordingly, the Veteran has met the schedular criteria for a TDIU as of November 25, 2009. 38 C.F.R. § 4.16(a).  The SSA determined, in a June 2007 determination, that the Veteran was unable to work as of June 1, 2007 due to a back disorder and degenerative joint disease. SSA decisions, while relevant, are non-binding on the Board. Martin v. Brown, 4 Vet. App. 136, 140 (1993). Although the SSA determination was based on a nonservice-connected physical disability, the SSA records show that he reported limitations related to his mental disorder. He reported that he did not respond well to authority figures and that he slept a majority of the day to avoid stress. He contended that his PTSD limited his ability to work in addition to his physical disabilities. The question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. Review of the evidence of record, when taken in total, supports the finding that the Veteran is unable to obtain and maintain gainful employment as a result of his service-connected disability. As such, a TDIU is warranted.  On his VA Form 21-8940, the Veteran reported that his PTSD prevents him from securing and following substantially gainful employment. He reported that he became too disabled to work in November 2010 and his prior employment included work in construction and tree work, doing tree removal and grinding out tree stumps. See December 2018 Statement in Support of Claim. He had previously reported that he only worked odd side jobs and did not maintain a full-time job. Statements from friends report that the Veteran volunteered with a food redistribution organization, but he did best with solo tasks and tended to isolate himself from other volunteers. He was also noted to lack people skills and experience outbursts of anger when he was in situations where he had to work in a group while volunteering. See January 2010 and April 2013 Buddy Statements. In a July 2015 statement, he endorsed symptoms of anger, mood instability, and being on edge and reported that he believes these symptoms render him unemployable. A February 2010 VA PTSD examination indicated that the Veteran’s PTSD was not severe enough to interfere with his occupational functioning. During that examination, the Veteran reported that he had not worked since 2005, and that he stopped working because of an injury to his back. He reported that he previously worked as a tree surgeon. A July 2010 VA treatment note indicates that the Veteran was retired or disabled with PTSD and had not worked since 2005. At a December 2012 VA PTSD examination, the examiner did not provide a response regarding the Veteran’s level of occupational and social impairment, but noted that he most recently worked in 2007 and had stopped working due to a car accident. Another VA PTSD examination, conducted in February 2015, did not provide a response to the Veteran’s level of occupational and social impairment, as his symptoms did not indicate a current mental health diagnosis. An April 2015 statement provided by a physician assistant in psychiatry opined that the Veteran still has significant PTSD symptoms and that those symptoms affect and limit his function and ability to interact with others. On a May 2017 VA PTSD examination, the examiner found that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The examiner indicated that the majority of that impairment, roughly 80 percent, would be due to his nonservice-connected major depressive disorder with psychotic features and the rest to his PTSD. The examiner opined that the Veteran’s PTSD may cause some difficulty in occupational settings that require a great deal of social interaction due to his anxiety around people. Multiple private examinations and opinions are of record regarding the Veteran’s ability to obtain and maintain substantially gainful employment. In a September 2017 statement by the same physician assistant who provided an earlier statement, the examiner acknowledged treating the Veteran since March 2015 and opined that the Veteran is unable to obtain or maintain any gainful employment due to his chronic PTSD symptoms. The examiner noted that the Veteran’s daily functional capacity is worsening with time and included information regarding medical qualifications (including years of treating mental health patients). A December 2017 disability benefits questionnaire (DBQ) and evaluation noted that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. The examiner indicated that the Veteran does not get enough sleep due to his symptoms and that this would create a safety issue in the workplace. The examiner acknowledged the Veteran’s difficulty with memory, receiving and remembering instructions, and forgetting other details that would affect his employment. The Veteran’s inconsistent and unstable mood and trust issues would, similarly, lead to problems with coworkers. The examiner concluded by opining that the Veteran’s PTSD symptoms could result in higher distractibility, absenteeism, and emotional turmoil that are inappropriate in the workplace. A private vocational opinion is of record from August 2020. The examiner reviewed the Veteran’s claims file, including relevant studies and reports regarding employment, leave, and absenteeism. The examiner then opined that the Veteran’s PTSD would result in needing more leave than an employer may be willing to provide, and that the Veteran’s ability to concentrate and complete tasks at work would be impaired. The examiner reviewed the prior opinions and reiterated that the Veteran could not sustain the stress from a competitive work environment. The examiner explained that the Veteran would be unable to perform his prior work as a tree surgeon due to the limitations of his PTSD, as his inability to focus and his hypervigilance would endanger himself and others while attempting to do this work that requires exposure to heights, use of dangerous equipment, and focus to avoid damage to surrounding areas. The Veteran would also be unable to work in a setting that required interaction with others or working as part of a team. Thus, the examiner opined that the combination of the Veteran’s PTSD symptoms renders him totally occupationally disabled from all competitive employment. Considering the evidence of record, the Board finds that the overall evidence is persuasive that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. While most of the VA examinations of record were unhelpful in determining his ability to secure or follow a substantially gainful occupation, the private evaluations of record are complete in their rendering and fully considered the Veteran’s symptomatology in addressing his limitations and ability to obtain employment. The Veteran’s PTSD, aside from the typical difficulty with interacting with coworkers and supervisors, results in difficulties with concentration, focus, and memory. While his prior work as a tree surgeon was predominantly physical in nature, the August 2020 examiner noted that this work still requires focus and concentration to prevent physical injury and that the Veteran would be incapable of doing this work based on his limitations. Furthermore, the evidence of record does not suggest that the Veteran would be able to obtain or maintain non-physical work based on his PTSD, as his prior work history shows he predominantly worked physical labor jobs and he would be unable to handle the stress and pressure and have continued difficulties concentrating and focusing or interacting with others in any capacity. The Veteran’s PTSD and resulting symptoms limit his ability to function in a way that would allow him to secure or follow a substantially gainful occupation. Based on the foregoing, the Board affords the Veteran the benefit of the doubt and finds that he is unable to obtain and maintain any form of substantially gainful employment due to his service-connected PTSD. The criteria for a TDIU have been met.  38 C.F.R. §§ 3.340, 4.16.  THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.