Citation Nr: 21012503 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-16 952 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT During the entire period on appeal, the Veteran’s posttraumatic stress disorder (PTSD) and major depressive disorder has rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from July 1967 to February 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue regarding entitlement to service connection for PTSD and major depressive disorder was previously before the Board in March 2018, at which time the Veteran’s claim was remanded for development. The Board found that the issue of TDIU was inextricably intertwined with the Veteran’s pending claim, and it was remanded until decision on that claim could be rendered. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The Veteran’s claim for entitlement to service connection for PTSD and major depressive disorder was granted in an August 2020 rating decision and the TDIU claim was returned to the Board for appellate review. 1. Entitlement to a TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 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). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Board notes that the Veteran’s TDIU claim was raised in the context of his service connection claim for PTSD and major depressive disorder. In September 2010, the Veteran requested reopening of his service connection claim for PTSD and major depressive disorder. In January 2012, he raised the issue of TDIU, asserting that his psychological symptoms prevented him from working. In August 2020, he was granted service connection for PTSD and major depressive disorder effective September 1, 2010. In light of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that since TDIU was raised during the pendency of the service connection claim, it may be considered dating back to the effective date for the grant of service connection for PTSD and major depressive disorder. As of September 1, 2010, the Veteran was in receipt of a combined disability rating of 80 percent with a 50 percent disability rating for PTSD and major depressive disorder. He also had a disability rating for diabetes mellitus with erectile dysfunction at 20 percent and tinnitus at 10 percent. Additionally, he had a disability rating for peripheral neuropathy at 20 percent each for the right and left lower extremities and 10 percent each for the right and left upper extremity. Accordingly, the Veteran has met the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) for the entire appeal period. The record reflects that the Veteran has been unemployed during the entire period at issue. In his January 2021 VA Form 21-8940, he stated that he last worked fulltime in May 2000 and he became too disabled to work as of this date due to all of his service-connected disabilities. Regarding his educational history, the Veteran’s January 2021 VA Form 21-8940 shows that he completed four years of college. Additionally, the Veteran indicated during a March 2020 VA examination that he has a degree in education and completed a specialized program in genetics. The Veteran was an English teacher in a middle school from 1972 to 2000. During VA examinations in March 2009, February 2011, and March 2014, the Veteran reported that he retired from this work because he was eligible by age and duration of work. However, a psychiatric treatment note from August 2008 indicates that the Veteran’s psychological symptoms, which included difficulty controlling anger and impulses, had a significant impact in his retirement from his job. The Veteran also reported that he had been suspended from his job due to physical aggression toward his students during VA examinations in February 2011 and March 2020. Turning to the medical evidence, the Veteran was evaluated for psychiatric treatment in August 2008. Symptoms reported at this time included depressed and anxious mood, frequent crying spells, irritability, insomnia, nightmares, memory loss, and difficulty concentrating. He also reported a history of aggressive outbursts and difficulty controlling anger and impulses. He indicated that he retired from his job as an English teacher eight years prior and that these symptoms had a significant impact in this decision. The mental status evaluation indicated that there was evidence of psychomotor retardation, concentration and memory difficulties, an anxious and depressed mood, a labile affect, superficial insight, and fair judgment. The Veteran was tearful throughout the evaluation. Otherwise, his appearance, eye contact, thought content, thought process, speech, and level of orientation were normal. The psychiatrist indicated that the Veteran’s symptoms suggested a diagnosis of PTSD and marked depression, for which medication was prescribed. The Veteran returned for follow up in September 2008 and May 2009. He reported that his symptoms were the same despite taking medication. His psychiatrist assessed him with marked depressive symptoms. Additionally, the Veteran continued to present with evidence of psychomotor retardation, concentration and memory difficulties, an anxious and depressed mood, a labile affect, superficial insight, and fair judgment. He was tearful throughout both sessions. Otherwise, his appearance, eye contact, thought content and process, speech, and level of orientation were normal. The Veteran was also provided a VA examination to assess his psychological symptoms in March 2009. The examiner noted symptoms of depressed mood, crying spells, irritability, impulsivity, death thoughts, isolation, poor social adaptation, and sleep problems, which were severe and occurred daily. The mental status examination documented a blunted affect, depressed mood, attention disturbances, inability to count in serials of seven, inability to spell forward or backward, paucity of ideas, preoccupation with one or two topics, and mildly impaired memory. Otherwise, the Veteran was cooperative with intact orientation to person, place, and time, no signs of delusions, average intelligence, and intact judgment and insight. The examiner also concluded that the Veteran has total occupational and social impairment due to severe depression and many co-related medical conditions that affect his occupational and social development. In February 2011, the Veteran received another VA examination for PTSD. The mental status examination was essentially normal with the exception of a constricted affect. This examiner concluded that the Veteran had trauma exposure, but it did not cause impairment in social, occupational, or other areas of functioning. In support of this conclusion, the examiner noted that the Veteran retired from gainful employment eligible by age and duration of work. However, the Veteran reported to this examiner that he had been charged with physical aggression against his students nine times. Additionally, the Veteran reported having severe and daily symptoms of depressed mood, crying spells, flashbacks, sleeping trouble with nightmares, nervousness, and forgetfulness. Nine months later, the Veteran was also evaluated by a private psychologist in October 2011. This psychologist noted that the Veteran has been severely disabled due to his physical illness and psychiatric symptoms, as is evident by his irritability, anger, memory problems, poor concentration, crying spells, nightmares, guilt feelings, isolation, history of aggressive outbursts, difficulty controlling anger and outbursts, and impairment in his daily living activities. The psychologist further concluded that it is as likely as not that Veteran has been unable to hold a formal job of any sort and has been deteriorating with social functioning due to his psychiatric symptoms. In March 2014, the Veteran received another VA examination. The Veteran reported that he is active in his church and maintains good marital and parental relations, but he described himself as isolated. Symptoms documented at this time included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner assessed the Veteran with severe major depressive disorder with anxious distress and concluded that the Veteran has occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, and/or mood. This examiner did not find that the Veteran’s occupational and social impairment was caused by PTSD, due in part to the fact that the Veteran worked until eligible for retirement. However, the examiner did note that the Veteran reported being suspended from work due to “nerves.” The Veteran was provided another VA examination in March 2020. Symptoms documented at this time include depressed mood, anxiety, suspiciousness, mild memory loss, impaired judgment, difficulty adapting to stressful circumstances (including work or work-like setting), and impaired impulse control (such as unprovoked irritability with periods of violence). The Veteran was very emotional during the examination. The mental status examination revealed a labile mood with clear and mostly goal oriented speech, but it was tangential at times. Otherwise, he was oriented to person, place, time, and situation with no significant impairment in concentration or memory. The examiner concluded that the Veteran has occupational and social impairment with reduced reliability and productivity. However, the examiner also concluded that the Veteran’s symptoms of depression and PTSD have produced significant occupational and social impairment in the Veteran’s life since discharge from the military. The examiner further noted that the Veteran reported being suspended from teaching two to three times for hitting students. Ultimately, she concluded that these symptoms are more likely to negatively impact the Veteran’s work relationships as they have in the past and cause functional limitation. This examiner specifically noted that the Veteran has a history of hitting and assaulting students. After reviewing the above evidence, the Board finds that the Veteran’s service-connected PTSD renders him unable to secure or follow a substantially gainful occupation, and a TDIU is warranted effective September 1, 2010. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In reaching this conclusion, the Board notes that three separate examiners expressed opinions that the Veteran’s psychological symptoms interfere with his ability to work. The March 2009 VA examiner concluded that the Veteran has total occupational and social impairment. The October 2011 private examiner concluded that the Veteran is unlikely to hold a formal job of any sort and the March 2014 examiner concluded that the Veteran has occupational and social impairment in most areas. These opinions are based on the examiners’ expertise and they are supported by rationale consistent with the Veteran’s symptoms and clinical findings. In March 2009, the Veteran exhibited significant deficits on the mental status examination, including paucity of ideas, preoccupation with one or two topics, and impaired memory and attention. He reported symptoms including isolation, irritability, crying spells, impulsivity, and poor social adaption. In October 2011, the examiner also noted symptoms of irritability, anger, impaired memory, poor concentration, crying spells, and isolation. The March 2014 examiner made note of these findings from the prior VA examinations and treating records. She also noted that the Veteran currently presented with depressed mood, anxiety, sleep impairment, memory loss, and disturbances of motivation and mood. While several examiners noted that the Veteran retired from his job when he became eligible, they also noted that the Veteran was reprimanded at work for being physically aggressive towards his students. Additionally, the Veteran reported that his psychological symptoms had a significant impact on his decision to retire during a treating visit in August 2008. Furthermore, the March 2020 VA examiner concluded that the Veteran’s current symptoms would more than likely negatively impact work relationships as they had in the past. This examiner specifically referenced the Veteran’s history of hitting and assaulting students. The Board has considered the Veteran’s functional capacity and work experience in determining that no type of employment would appear to be appropriate for the Veteran. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The negative functional effect of the Veteran’s irritability, anger, and impulse control issues and his past history of violent behavior is especially relevant here, because the Veteran has only worked as an English teacher for middle school students. While the Veteran has numerous service-connected, physical disabilities, his difficulties with employment are primarily related to symptoms arising from PTSD and major depressive disorder. Thus, it is the Veteran’s psychiatric disability, standing alone, which prevents him from working. Based on the most probative evidence of record, the Board finds that the Veteran’s service-connected PTSD and major depressive disorder renders him unable to secure or follow a substantially gainful occupation. The record reflects that the Veteran has not worked in a fulltime or substantially gainful position at any time during the appeal period. Thus, the Board finds that a TDIU is warranted effective September 1, 2010. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. R. LAFFITTE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.