Citation Nr: 21012207 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-08 142 DATE: March 3, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) is granted since June 1, 2014. FINDING OF FACT Since June 1, 2014, after the Veteran’s last full-time employment, there is probative evidence of record supporting the conclusion that his service-connected PTSD alone prevents him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW Since June 1, 2014, the criteria for a TDIU due to service-connected PTSD alone are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to July 1972. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) in June 2014. A transcript of the hearing is of record. The Board remanded this issue to the VA Regional Office (RO) for further development in June 2015, December 2017, April 2020, and most recently, in October 2020; the claims file has been returned to the Board for adjudication. Entitlement to a TDIU. Under VA regulations, a TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In determining whether a Veteran is entitled to a TDIU, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether a Veteran is entitled to TDIU is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a Veteran’s earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. During the appeal period, the Veteran’s service-connected PTSD has been rated as 70 percent disabling, his service-connected diabetes mellitus has been rated as 20 percent and then 40 percent disabling, his service-connected tinnitus has been rated as 10 percent disabling, and his service-connected bilateral hearing loss has been rated as noncompensable. His combined rating has been 80 percent since October 12, 2010. As such, he meets the schedular criteria for a TDIU during the entire appellate period. 38 C.F.R. § 4.16 (a). In his November 2017 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Employability, the Veteran reported that he was unemployable due to his service-connected PTSD, that he last worked full-time in 2014 as a bus driver, and that he was currently working 15 hours per week as an Uber driver, since 2015. In a March 2020 VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, the Veteran’s former employer reported that the Veteran’s last date of full-time employment was approximately May 23, 2013, and noted that records prior to that date no longer existed. In this regard, there are instances of VA and/or private psychiatric treatment dated after May 23, 2013, during which the Veteran discussed problems at work. The Veteran’s tax documents submitted do not list dates of employment for the year 2013 or 2014 or otherwise provide information upon which to determine his last date of full-time employment. Specifically, as of the Veteran’s December 2013 Disability Benefits Questionnaire (DBQ), he was still working as a bus driver. In February 2014, during private treatment, he discussed a recent work incident. During VA treatment in April 2014, he sought a form for an exemption to work as a bus driver while using insulin, and in instance of private treatment dated in April 2014, he referred to a February 27, 2014, Final Letter of Correction from his employer. In May 2014, during VA treatment, he referred to his work as a bus driver. In June 2014, during his Board hearing, as asserted that he was unemployed. The Board has considered that the former employer’s March 2020 response was presumably made based on review of available records related to the Veteran’s pay. However, it is possible that such represents a typographical error and that the former employer meant to report the Veteran’s last day of full-time employment as May 23, 2014, and not May 23, 2013; such would follow the clinical and lay evidence of record. The Board cannot explain the discrepancy and notes that a TDIU may not be in effect while the Veteran is employed on a full-time basis, without evidence that such employment was marginal. There is no assertion as to such for this period, from May 23, 2013, to June 1, 2014. Thus, despite the former employer’s March 2020 response that the Veteran’s last date of full-time employment was approximately May 23, 2013, the Board finds that there is clear evidence, the Veteran’s own statements made to private and VA treatment providers as well as to VA for compensation purposes, that he was employed as a bus driver until he was no longer employed by the time of his June 2014 Board hearing. The Board cannot conceive of a scenario wherein the Veteran would report that he was working on a full-time basis after May 23, 2013, when he was not. It does not appear that further development on this issue, as the Veteran’s former employer has already responded to VA’s inquiry, would yield clarification. Further, the Board has considered that the Veteran has reported, in November 2017, that he had been working on a part-time basis, 15 hours per week, as an Uber driver, since 2015. The Board has been unable to obtain more detailed information as to the Veteran’s income since 2015 such that his part-time Uber driving job could be deemed substantially gainful employment. There is no evidence that such work is more than marginal. 38 C.F.R. § 4.16 (a); Moore, 1 Vet. App. 356. In an October 2017 statement, the Veteran asserted that his work as an Uber driver was subcontract work, that he was able to work when he could and stop when he needed to take a break and go home, as he had problems with dealing with other drivers in traffic. Without determining whether the Veteran’s work as a part-time Uber driver earns him a living wage, the Board finds that such work is indeed marginal and not substantially gainful employment, as such is in a protected environment, where he is able to work when and if he can for only as long as he can before taking a break and going home. Id. The claims file contains numerous instances of VA and private treatment, as well as lay statements from the Veteran and his spouse, discussing functional limitations related to his service-connected diabetes mellitus, notably the need for insulin use while driving a commercial vehicle and the inability to obtain a commercial driver’s license due to such. However, as the Board finds sufficient evidence to grant herein a TDIU based on the Veteran’s service-connected PTSD alone; further consideration of evidence of unemployability due to service-connected diabetes mellitus is thus not required. During private treatment in June 2013, the Veteran followed up on his most recent argument he had with his supervisor and discussed alternatives to “blowing up.” During private treatment in August 2013, he reported continued problems with his temper at work, noting that he had poor attendance due to his mood and anger. During private treatment in November 2013, he reported a “blow up” on the job. In a December 2013 DBQ of the Veteran’s service-connected PTSD, he reported that he had an uneasy truce with a manager who attempted to get him fired with a several-page list of infractions, however, her manager told her that this Veteran had done well enough in a “disciplinary period,” and that she should leave him alone. He reported that the rules and regulations involved in working for others still caused him great difficulty. In an April 2014 letter, the Veteran’s private treatment provider reported that the Veteran had a very unstable employment history at his current job and due to his easily provoked anger and episodic rage reactions, he has received many disciplinary letters, most threatening termination. He noted that the Veteran had been easily agitated and anxious regarding company procedures and policies, to the point of being cited on numerous occasions for not complying with standard procedures and had recently received a Final Letter of Correction for his failure to conform to policies. The private treatment provider reported that while the Veteran was currently married, his spouse would not cohabitate with him due to his volatility and anxiety, that his verbal explosions were perceived as threatening by the spouse to the point she would not live with him. He reported that the Veteran also suffered from relatively severe levels of depression with nihilistic self-destructive thoughts, that he isolated himself in his home with little contact with others. He noted that the Veteran had episodes of yelling at cashiers and service persons, making it difficult for him to effectively interact in the tasks of daily living. In a July 2019 letter, the Veteran’s private treatment provider discussed his employability related to service-connected PTSD. The private treatment provider referred to prior letters dated in 2011 and 2017 he had submitted on the Veteran’s behalf, incorporating the conclusions therefrom. Of note, however, is a statement from his March 2011 letter wherein he opined that the Veteran’s service-connected PTSD rendered him unemployable and continued employment was not advised as such may lead to further violent episodes with possible injury to others. He asserted that given his high level of functional impairment on his job, with frequent violent angry outbursts and disciplinary letters threatening termination, coupled with domestic agitation and difficulties, the Veteran is not employable and continued employment is not encouraged. The private treatment provider opined that the Veteran’s service-connected PTSD alone renders him unable to manage a work placement setting, as he continues to be unemployable based on his worsening PTSD-related anxiety and agitation. Based on the forgoing and resolving all doubt in favor of the Veteran, as is required by law, the Board finds that the evidence, as discussed above, supports the conclusion that the Veteran is unemployable due to his service-connected PTSD since June 1, 2014, after his last full-time employment. A TDIU is thus granted since June 1, 2014. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A TDIU is not warranted prior to June 1, 2014, as the Veteran was employed on a full-time basis. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.