Citation Nr: 21007324 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-02 659 DATE: February 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected posttraumatic stress disorder with depressive disorder (PTSD) (rated 70 percent); sleep apnea (rated 50 percent); irritable bowel syndrome (IBS) (rated 30 percent); residuals of right shoulder injury (rated 10 percent); left shoulder rotator cuff injury status post repair (rated 10 percent); tinnitus (rated 10 percent); and left ear hearing loss (rated 0 percent), are rated 90 percent combined; they are reasonably shown to be of a nature and severity that render him unable to maintain regular substantially gainful employment. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1981 to May 1984, and August 2004 to July 2006. This matter is before the Board on appeal from a July 2017 Department of Veterans Affairs (VA) rating decision. In January 2021, a videoconference Board hearing was held before the undersigned; a transcript is not yet associated with the claims file but will be in the ordinary course of business (when completed). A TDIU rating is granted. In his April 2017 application for TDIU, the Veteran contends that his service-connected PTSD prevents him from securing or following any substantially gainful occupation. He stated that it first affected his full-time employment in February 2009, when he last worked in construction labor. He stated that he left his last job because of the disability, and he has not tried to obtain employment since then. His previous work included in construction labor and as a mechanic. He stated that he has a high school education. In a May 2017 response to a Request for Employment Information, the Veteran’s last employer, a construction company, indicated that he was employed full-time from October 1989 to February 2009 as a laborer, with no time lost during the 12 months preceding his last date of employment due to disability, and no concessions made. The reason for termination of employment was reported as unknown. On June 2017 VA PTSD examination, the Veteran reported that he was isolating himself more than in the past. He reported problems with anger outbursts that interfered with his relationships. His wife reported that she must remind him of tasks including bathing, brushing his teeth, and changing into clean clothes without holes. It was noted that on May 2016 VA neuropsychological testing, deficits in the Veteran’s attention and immediate memory were noted, and his mood/stress and poor sleep were likely contributors to these impairments. His reported symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or a work-like setting, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The examiner opined that the Veteran’s psychiatric diagnoses result in occupational and social impairment with reduced reliability and productivity. On July 2017 VA intestines examination, the Veteran reported having watery stools/diarrhea 10 times a day, with blood seen on tissue occasionally, and nausea once a week. He reported more or less constant abdominal distress, and episodes of exacerbations and/or attacks of IBS included bloating. The examiner opined that the IBS impacts the Veteran’s ability to work, noting that he had worked as a laborer in construction, and he was unable to do this work due to the diarrhea. A September 2017 Social Security Administration decision granted the Veteran SSA disability benefits, finding that he had severe impairments including a lumbar spine disability, a left shoulder disability, obstructive sleep apnea, obesity, and PTSD, which cause significant limitation in his ability to perform basic work activities. He was noted to have mild limitations in understanding, remembering, or applying information; marked limitations in interacting with others; mild limitations in concentrating, persisting, or maintaining pace; and mild limitations in adapting or managing himself, due to PTSD. The findings included that he is unable to perform any past relevant work. At the January 2021 Board hearing, the Veteran and his wife testified describing the symptoms and impairment associated with each of his service-connected disabilities. He testified that his wife is considered his caregiver and must accompany him whenever he goes out, because he may have anger outbursts at any time. She testified that she cannot leave him alone with their grandchildren because he cannot be trusted to be alone with them due to his anger outbursts. She testified that occasionally she has to remind him to bathe and tend to personal hygiene, helps him keep track of his medications, and does the driving because he gets road rage. He testified that he is frequently sleepy during the day due to sleep apnea, and that that he must always be near a bathroom due to frequent (multiple times a day) diarrhea. He testified that he has had two rotator cuff surgeries, and that his work was always primarily of a physical labor type. A TDIU rating may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran’s nonservice-connected disabilities on his ability to function. 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. The Veteran service-connected disabilities are: PTSD, rated 70 percent; sleep apnea, rated 50 percent; IBS, rated 30 percent; right shoulder disability, rated 10 percent; left shoulder disability, rated 10 percent; tinnitus, rated 10 percent; and left ear hearing loss, rated 0 percent. The combined rating is 90 percent. The schedular rating requirement for TDIU in 38 C.F.R. § 4.16(a) is met. The analysis turns to whether the service-connected disabilities render him unemployable. Considering the effects of the service-connected disabilities on employability, the Board finds significant, in support of the Veteran’s claim, the opinions of the VA examiners discussed above, each based on a review of the complete record, interview with the Veteran, and mental/physical examination. The Board has no reason to question those opinions, and finds they support, in part, that he would be unable to maintain employment consistent with his education and work experience. Most notable are the 2017 VA examiners’ observations that the Veteran’s IBS precludes him from engaging in his previous work as a laborer in construction because of the diarrhea; and that his PTSD and unspecified depressive disorder result in occupational and social impairment with reduced reliability and productivity. In addition, the Board notes the treatment records, statements, and hearing testimony by the Veteran, discussed above, regarding the limitations caused by his service-connected psychiatric and physical disabilities support his claim for TDIU. The Board notes that he has a high school education with no additional training, and the vast majority of his occupational experience is as a laborer in construction, which does not easily translate to sedentary employment such as a desk job. The Board further notes the Veteran’s hearing testimony, which is deemed credible, indicates that his psychiatric disability significantly impairs his ability to get along with others, and his bilateral shoulder disabilities limit his ability to engage in physical labor. On review of the record the Board finds that the overall disability picture presented by the Veteran’s service-connected disabilities is one which is reasonably shown to now preclude him from maintaining any regular substantially gainful employment consistent with his education and experience. The Board acknowledges that he has comorbid non-service-connected disabilities (notably a lumbar spine disability, hypertension, and peripheral neuropathy) which likely also substantially contribute to his unemployability (as SSA found), but finds that even disregarding the effects of such disabilities, he is nonetheless shown to be unemployable due solely to his [service-connected] disabilities. Significant in this regard is that in addition to his IBS and bilateral shoulder disabilities, which substantially impair his ability to engage in the types of work consistent with his education and experience, his service-connected disabilities include a psychiatric disability and OSA which cause sleep impairment, memory loss, anger outbursts, and difficulty getting along with others. Considering the cumulative effect of the functional impairment flowing from the Veteran’s separate service-connected disabilities, the Board finds that such disabilities are now reasonably shown to be of a nature and severity that preclude him from participating in any regular substantially gainful employment consistent with his education and occupational experience. The criteria for establishing to a TDIU rating are met (see 38 C.F.R. §§ 4.3, 4.16); a TDIU rating is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.