Citation Nr: 21011492 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-38 839 DATE: March 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his service-connected psychiatric condition has precluded him from securing or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to June 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed a claim for a TDIU in June 2014 which was denied by the RO in an August 2015 rating decision. However, within a year of the August 2015 rating decision, new and material evidence was received in the form of a Mental Residual Functional Capacity Assessment completed by the Veteran’s VA treating physician. Thus, the Board finds that the August 2015 rating decision did not become final and is the one currently on appeal to the Board. 38 C.F.R. § 3.156(b). In April 2019, the Board denied the Veteran’s claim for entitlement to a TDIU as well as entitlement to special monthly compensation based on the need for aid and attendance and/or being housebound. The Veteran only appealed the denial of a TDIU to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, pursuant to a June 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s April 2019 decision denying a TDIU and remanded the claim for action consistent with the terms of the parties’ JMPR. The Board notes that there may be outstanding, relevant private records. However, in light of the favorable decision below granting the benefit sought on appeal in full, the Board finds no prejudice in proceeding with a decision at this time. Entitlement to a TDIU. The Veteran contends that his service-connected psychiatric condition renders him unemployable. For the reasons that follow, and after resolving all reasonable doubt in favor of the Veteran, the Board finds entitlement to a TDIU is warranted. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled 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). In the Court’s March 2019 Panel Decision, it explained that “substantially gainful employment” contains economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. 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 sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran is only service connected for anxiety reaction with insomnia symptoms, rated 70 percent disabling throughout the entire appeal period. Accordingly, he meets the schedular requirements for a TDIU for the entire appeal period. A review of the record shows that the Veteran worked as a truck driver, a forklift operator, and in a factory as an assembler and handler/packer. See March 2005 Counseling Narrative. The Veteran last worked in June 2014 at which time he was placed on long term disability due to nonservice-connected conditions. See April 2015 VA examination; January 2016 Request for Employment Information in Connection with Claim for Disability. With regards to the Veteran’s education, he completed two years of college as well as a truck driving course. See June 2014 Veterans Application for Increased Compensation Based on Unemployability (VA 21-8940). A March 2006 vocational rehabilitation assessment of abilities shows that the Veteran ranked highest in the clerical category. While an August 2014 Social Security Administration (SSA) Function Report shows that the Veteran reported talking with others often, in a November 2015 SSA Function Report the Veteran reported problems getting along with family, friends, and neighbors. In a March 2015 SSA psychiatric evaluation, the Veteran’s recent and remote memory were noted as adequate. Recent memory, concentration, and judgment were noted as poor. The Veteran reported socializing with others. He also reported problems concentrating and being forgetful. The SSA examiner opined that while the Veteran would likely be able to perform routine and repetitive tasks, his persistence appeared questionable. The examiner noted that his ability to interact with coworkers and receive supervision appeared adequate but that his ability to sustain attention appeared poor. The Veteran underwent a VA psychiatric examination in April 2015. The examiner noted that the Veteran experienced excessive worrying; impaired concentration; low energy; low motivation; depression; anxiety; suspiciousness; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work and a work like setting; suicidal ideation; and neglect of personal appearance and hygiene. It also was noted that the Veteran struggled with anger and irritability and was prone to becoming verbally aggressive with others when he became angry but not physically aggressive. Difficulty concentrating and focusing also was noted. The Veteran’s thought process was linear and logical, insight and judgment were intact, and no overt evidence of any cognitive deficits was noted. The examiner opined that the Veteran’s psychiatric condition alone did not impair his ability to engage in physical or sedentary forms of employment. The Veteran underwent another VA examination in July 2015. The following symptoms were noted: depressed mood; anxiety; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work and a work like setting; and neglect of personal appearance and hygiene. The examiner noted that the Veteran experienced anger and irritability as well as difficulty concentrating and focusing. His thought processes were linear and logical, and insight and judgment were intact. Again, no overt evidence of any cognitive deficits was noted. In October 2015, the Veteran submitted an SSA Residual Functional Capacity Assessment completed by his VA treating physician, Dr. C.I. Dr. C.I. indicated that the Veteran’s understanding and memory were markedly limited, his sustained concentration and persistence were moderately to markedly limited, his social interaction was moderately to markedly limited, and his adaptation also was moderately to markedly limited. With regards to social interaction, Dr. C.I. indicated that the Veteran’s ability to get along with coworkers without distracting them or exhibiting behavioral extremes as well as his ability to accept instructions and criticism from supervisors was markedly limited. Dr. C.I. further explained that the Veteran had very poor concentration which made him prone to errors. The Veteran underwent another VA examination in December 2015. At the examination, the Veteran reported that he had a few friends he talked to on the phone and who would come by and check on him. The following symptoms were noted: depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of mood and motivation; difficulty in adapting to stressful circumstances, including work and a work like setting; suicidal ideation; neglect of personal appearance and hygiene. While his memory and concentration were noted to be fair, his insight and judgment were noted to be poor to fair. The examiner also noted that the Veteran was irritable all the time. A July 2016 VA treatment record shows that the Veteran’s judgment, insight, and recent and remote memory were good. In February 2017, the SSA found the Veteran disabled due to conditions other than his service-connected psychiatric disability. A May 2019 VA treatment record shows that the Veteran continues to experience irritation and anger. In September 2020, the Veteran submitted a December 2017 private vocational assessment completed by D.S. At the assessment, the Veteran reported that he can read a magazine or newspaper but cannot read books because he cannot concentrate long enough or becomes sleepy. The assessment contains the results of a Shipley 2 test that indicates the level of overall cognitive ability at which a person is functioning. The Veteran’s overall cognitive ability was considered to be at the low level. With regards to clerical work, D.S. opined that the Veteran had not developed clerical skills and had not demonstrated the capacity to learn the skills for an office clerk as performed in today’s workplace. While D.S. opined that the Veteran is unable to perform any jobs in the labor market, a review of the assessment as a whole indicates that such was based, at least in part, on nonservice-connected conditions. Based on a review of all of the evidence of record, and resolving reasonable doubt in the Veteran’s favor, his service-connected psychiatric condition would reasonably preclude him from securing and maintaining substantially gainful employment. In light of the Veteran’s previous work history and education, he likely would be able to obtain a job as a truck driver or an unskilled/semi-skilled position, such as in a factory, call center, telemarketer, or parking lot attendant. However, while the Board believes that the Veteran would be able to obtain one of the aforementioned positions, it finds that it is unlikely that the Veteran would be able to maintain the position due to his psychiatric symptoms, particularly his significantly impaired concentration. The Veteran’s difficulties with concentration and focus have been consistently noted throughout the appeal period. Significantly, the March 2015 SSA examiner noted that while the Veteran had the ability to perform routine, repetitive tasks, his persistence was questionable and noted his ability sustain attention appeared poor. The Veteran’s VA treating physician also noted that the Veteran had very poor concentration which made him prone to errors. Any type of employment would require an adequate degree of concentration and attention in order to timely complete occupational tasks. Moreover, while the March 2015 SSA examiner noted that the Veteran’s ability to interact with coworkers and supervisors appeared adequate, Dr. C.I. noted that the Veteran’s ability to get along with coworkers and interact with supervisors was markedly limited. Thus, the Board finds it likely that the Veteran’s issues with anger and irritability would likely negatively impact interactions with supervisors and coworkers, resulting in significant difficulty functioning in one of the aforementioned positions. The Board also finds it reasonable to conclude that the Veteran’s neglect of personal appearance and hygiene also would impact his ability to maintain substantially gainful employment. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the criteria for TDIU have been met. The claim for TDIU is granted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate 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.