Citation Nr: 21010880 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 13-31 312A DATE: February 25, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran had active duty service from March 1990 to August 1990 and from January 2005 to March 2006. 2. The Veteran’s service-connected disabilities render her unable to secure or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a schedular TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from March 1990 to August 1990 and from January 2005 to March 2006, with additional service in the Army Reserve. This case was previously remanded by the Board for initial development of the Veteran’s claim of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16, including for further development of her employment history. On remand, in October 2019, the Regional Office (RO) requested that she provide this information by completing and submitting VA Form 21-8940, an application for increased compensation based on unemployability, as well as VA Form 21-4192, a request for employment information in connection with claim for disability benefit, with inquiries to be completed by each of her prior employers. To date, no response has been received to the request for this additional employment information. At present, the claim has been returned to the Board for additional adjudication. As the Veteran was requested but failed to provide the necessary completed form, there is no prejudice in adjudicating the claim. Turning to the relevant laws and regulations, 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 as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 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 (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 (1993). The Veteran contends that she was unable to work due to her service-connected disabilities. Accordingly, the issue of entitlement to TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran is now rated at 70 percent for service-connected PTSD and 10 percent for residuals of gall bladder surgery with scarring. The combined rating as of August 30, 2010 is 70 percent. Therefore, she has met the schedular criteria for assignment of a TDIU as of that date. That a veteran may be unemployed or has difficulty obtaining employment is not determinative. In making its determination, VA considers such factors as the educational background, employment history, and the extent of the service-connected disabilities. Looking at the Veteran’s educational history, she completed high school, but did not appear to pursue any higher education. The Veteran was employed for some of the appeal period. Her most recent prior employment was working as a machine operator for a computer printing company. She had held that position for about 21 years, both prior to and following her deployment. This is the only employment experience detailed in the record. The Veteran recounted that, after returning from deployment, she had experienced outbursts, irritability, and periods of crying while at work. Then, in February 2017, she reported that she was terminated due to a verbal altercation with another employee. After her termination, she had initially been told that she might be rehired if she would agree to attend counseling. She had hoped to return to the job and had followed up with the employer’s human resources staff. However, in July 2019, she was informed by the human resources staff that they felt she was unemployable. She was not rehired and has not worked since. Turning to the medical evidence of the Veteran’s service-connected disabilities, a TDIU must address and take all service-connected disabilities together. In support of her claim, the Veteran underwent several VA examinations to assess the functional impact of her service-connected disabilities on her employment. PTSD was found to impact her ability to work but residuals of gall bladder surgery were found not to cause functional impairment affecting her employability. As for the long-term effects of PTSD on the Veteran’s employability, a May 2011 VA examination indicates that the Veteran had been reprimanded at work for inappropriate behavior, including anger, related to PTSD symptoms. For example, she reported that she had been suspended and written up for anger and irritability on the job. She also at that time reported avoiding crowds, avoiding people or getting to know them, feeling unsafe leaving her house, and experiencing hypervigilance that made it difficult to sleep, and becoming easily irritated and angered. The Veteran’s current symptomatology of PTSD, as indicated in a September 2019 VA examination, includes forgetting names and recent events; occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, and thinking; suspiciousness; depressed mood; mild memory loss; chronic sleep impairment; difficulty in adapting to stressful circumstances; anxiety; and forgetting directions. The Veteran’s symptoms also include reduced energy and motivation, depressed mood, lack of relationships, and panic attacks. This includes difficulty interacting with others, even with her own family and religious community, for more than a few hours at a time without suffering from debilitating symptoms of anger, irritability, and panic. In particular, VA examiners repeatedly have noted that she has difficulty establishing and maintaining effective work and social relationships, as well as difficulty in adapting to a work or worklike settings. When looking at the disability picture as a whole, the medical evidence supports a finding that it is at least as likely as not that the Veteran’s service-connected PTSD renders her unable to obtain or maintain substantially gainful employment. She isolates herself and is easily irritated. She is unable to consistently communicate and form effective and sustainable social and work relationships with others. And she is unable to cope with stress in a worklike environment. The Board has also considered the Veteran’s lay statements regarding her PTSD and the limitations that render her unemployable. She is competent to report symptoms and observations because this requires only personal knowledge as it comes to her through her senses. These lay statements along with the medical evidence were considered in making the decision above. Her statements are consistent with the evidence of record. As such, because her PTSD and occupational impairments render her unable to secure or maintain substantially gainful employment, entitlement to a TDIU is warranted. The appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel Edward P. Vrtis 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.