Citation Nr: 21010903 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-42 723A DATE: February 26, 2021 ORDER Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran is currently service connected for unspecified trauma related disorder, claimed as posttraumatic stress disorder (PTSD) rated at 70 percent; ischemic heart disease rated at 30 percent; diabetes mellitus rated at 20 percent; tinnitus rated at 10 percent; and a scar at the bridge of his nose rated as noncompensable. 2. After resolving reasonable doubt, the Veteran’s service-connected disabilities likely preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1963 to September 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran cancelled his request for a Board hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. This matter was previously remanded in April 2019. TDIU The Veteran has claimed that his work is impacted by his service-connected disabilities. After review of the evidence of record, the Board finds that entitlement to TDIU is warranted. 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. 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.” 38 C.F.R. §§ 3.340(a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular 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, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). In accordance with the above decision, the Veteran’s service-connected disabilities include: unspecified trauma related disorder, claimed as posttraumatic stress disorder (PTSD) rated at 70 percent; ischemic heart disease rated at 30 percent; diabetes mellitus rated at 20 percent; tinnitus rated at 10 percent; and a scar at the bridge of his nose rated as noncompensable. The combined disability rating is 80 percent from May 12, 2014; and 90 percent from September 2, 2020. The Veteran does meet the schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). In January 2015 the Veteran filed a claim for TDIU, noting that he previously worked at UPS as a driver and would work 60 hours a week. See January 2015 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. The examiner reported that he worked until April 2009, and that the most he ever earned in a year was $83,000. He specified that PTSD prevents him from securing or obtaining substantially gainful employment. He reported that he had no training or schooling since 1973. He reported that he was a CDL truck driver and that he cannot now drive a semi-truck because of medications and nerves and social isolation. He reported that he does not leave home for weeks at a time and he is no longer CDL qualified. In his SSA Work Report, the Veteran described his job of being a truck driver, to include hooking trailers together, fueling and pre-tripping equipment and driving about 600 miles a day, five days a week. See Work History Report Form SSA 3396. He noted that heart problems, depression and arthritis affected his ability to work. The Veteran was afforded a VA examination for his service-connected psychiatric disorder in October 2014. At that examination, the Veteran described his current family life as not being close to his family and that their relationships remain conflicted. He elaborated that he would drive his truck for work so he did not have to be around his family and he spent most of his time watching television or sitting outside alone. He stated that he interacts with his family only when he has to and avoids making new social contacts and has no friends outside his family. He denied having any hobbies or other recreational pursuits. He stated “my job was my hobby and I can’t do anything physically now.” The Veteran reported a usual state of anxiety, felling tense, being unable to relax, worrying in excess without panic attacks, being in a dysthymic mood more often than not with periods of increased depression, hallmarked by fatigue, withdrawal, irritability without crying or hopelessness and loss of interest in usual activities. The Veteran also reported persistent irritability with anger outbursts and confrontive behavior, poor concentration and forgetfulness for details of conversations. He also described sleep disruption, intermittent awakening and averages about 4-5 hours of sleep variability with medication. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss such as forgetting names, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or in a work like setting and impaired impulse control. In March 2015 the Veteran was afforded a VA opinion for his TDIU. Regarding the question of TDIU, the examiner found that it was beyond the scope of the expertise of the examiner to determine whether or not the Veteran’s service-connected disabilities rendered him unable to secure and maintain substantially gainful employment. The examiner found that it was outside the scope of competency for the examiner to address questions related to physical employment. Therefore, the following functional impairments are noted as likely to manifest in a competitive work place setting, with the Veteran maintaining the following abilities and capacities to manage duties of gainful sedentary employment: understanding and memory. The examiner noted that the Veteran’s ability to understand and remember and follow simple, concrete instructions, locations and details of written and spoken communication and work like procedures is likely mildly impaired for employment. Concentration and persistence: the Veteran’s ability to carry out detailed instructions and maintain/sustain task performance/concentrate for extended periods and maintain attention to details in a typical work day routine to make work related decisions is likely mildly impaired for employment. With regard to social interaction the Veteran’s ability to get along with coworkers, respond appropriately to supervision, maintain socially appropriate behavior, work around others without becoming distracted or having behavioral extremes, the ability to interact with the general public is likely mild to episodically moderately impaired for competitive employment due to ongoing anxious and depression symptoms of irritability, limited frustration and stress tolerance, isolation/avoidance behavior. The examiner found that the Veteran was likely to have mild to episodically moderately impaired ability to respond appropriately to changes in work setting associated with limited frustration tolerance and being easily overwhelmed. A review of the medical and lay evidence indicates that the Veteran’s service connected disabilities, specifically his service-connected psychiatric disorder, renders him unable to obtain and retain substantially gainful employment, in particular with consideration of his level of education and past employment which involved driving and concentration in addition to dealing with coworkers. In this regard, the Veteran was provided a VA examination for his service-connected psychiatric disorder in October 2014 and the report indicated that the Veteran has significant irritability, angry outbursts, memory loss problems and concentration problems. A March 2015 TDIU opinion found that it was difficult for the Veteran to work appropriately around others without being distracted or having behavioral extremes, and that the ability to interact with the general public is likely mild to episodically moderately impaired. The examiner found that the Veteran was likely to have mild to episodically moderately impaired ability to respond appropriately to changes in work setting associated with limited frustration tolerance and being easily overwhelmed. (Continued on the next page)   In sum, the service-connected psychiatric disability impairs the Veteran’s ability to concentrate, interact with coworkers and follow concrete instructions and pay attention to detail. In light of the foregoing, the Board finds that the Veteran’s limitations from his service-connected disabilities, in particular his psychiatric disability, likely render him unable to obtain and retain substantial and gainful employment. Accordingly, the Board concludes that entitlement to a TDIU is warranted and the Veteran’s claim is therefore granted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED