Citation Nr: 21013692 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-46 687 DATE: March 10, 2021 ORDER Effective April 22, 2016, a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT From April 22, 2016, the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSION OF LAW From April 22, 2016, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to May 1969. The case is on appeal from an April 2014 rating decision. Most recently, in a September 2020 decision, the Board denied service connection for sleep apnea. At that time, the Board also remanded erectile dysfunction and TDIU claims for further development. When the case was in remand status, in a November 2020 rating decision, the RO granted service connection for erectile dysfunction. As the benefit sought has been granted in full, that issue is no longer on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552   (2008). A TDIU Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 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 and 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 can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).   Evidence The Veteran is service connected for multiple disabilities. He is service connected for posttraumatic stress disorder (PTSD) with major depression disorder (herein PTSD) and traumatic brain injury (TBI), which has been assigned a 70 percent rating from December 2012. An April 2020 rating decision included TBI as part of the evaluation for the Veteran’s PTSD, finding that rating such conditions together would afford him a higher rating. This rating decision noted that the effective date for service connection for TBI was April 22, 2016. The Veteran is also service connected for migraine including migraine variants, which has been assigned a 30 percent rating from April 22, 2016; tinnitus, which has been assigned a 10 percent rating from December 2012; bilateral hearing loss, which has been assigned a zero percent rating from December 2012; and erectile dysfunction, which has been assigned a zero percent rating from September 2014. The Veteran’s combined disability rating is 70 percent from December 2012 and 80 percent from April 2016. He has meet the schedular TDIU criteria from December 2012 under 38 C.F.R. § 4.16(a). Of record is a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) completed by the Veteran in August 2019. The Veteran noted that PTSD was the service-connected disability preventing him from securing or following any substantially gainful occupation. It was noted that October 2012 was the date that the Veteran’s disability affected full-time employment, that he last worked full-time and that he became too disabled to work. He reported that the most he ever earned in one year was in 2011 as a Funeral Director. He also noted that he worked part-time in security work from June 2017 to July 2019. He noted that his highest gross earnings per month during this period was $3,000 and he reported time lost from illness as “months.” He noted that in the last 12 months his total earned income was $1,660. He stated that he lost his last job because of his disability. He reported an education level of three years of college and noted having an associate degree. The Veteran also stated on the form “my anxiety and inability to drive to work or perform task as required. My mental state was very erratic. Memory is an issue. I did not feel I could handle the job as required. Sleep was an issue” and that “[t]he stress that I felt was overwhelming. I did not want the responsibility to affect me more than it did.” Other evidence of record including relevant information about the Veteran’s work history. In this regard, a March 2012 private Kaiser Permanente treatment record stated “[h]as worked as a police officer, has worked in real estate, as a sales person, as a personal guard, ‘I have reinvented myself a few times.’ About five years ago, he started selling funeral services and then became a director of a funeral home.” A December 2013 VA treatment note stated that the Veteran “worked for 25 years as Deputy Sherriff…then worked in several jobs, the last one he was asked to leave.” A March 2014 PTSD DBQ stated that after the military the Veteran “worked for the Sheriff’s department…for 25 years. He reports that he retired from the Sheriff’s de[p]artment in 1995 and went back to school to learn about computers” and that “[h]e then worked private security for about 10 years and then as a funeral director for 5 years. He reports that he retired in 2012 and has not worked since.” In an October 2014 notice of disagreement (NOD), the Veteran’s representative stated that the “Veteran was fired from his last job, and although they explained why, he could not understand the explanation. He found it difficult to grasp certain concepts even though he had been doing the job for five years.” An April 2016 PTSD Disability Benefits Questionnaire (DBQ) stated that after the military the Veteran “worked as a deputy sheriff…for 25 years; he retired in 1995. He then worked as a security director for two different companies; he also did some private investigation work. He then worked in a mortuary and cremation business for five years.” The DBQ stated that the Veteran “stopped working three years ago due to worsening PTSD symptoms and depression.” In a September 2020 statement, the Veteran’s representative stated that “the VA fails to contemplate whether Veteran’s migraines, in addition to his PTSD, causes Veteran from obtaining ‘substantially gainful’ employment.” It was also stated that “Veteran was a law enforcement officer for many years. However, because of his age, he no longer qualifies. However, because of his service-connected PTSD and migraines, Veteran is likely unable to learn any new skill.” In essence, the representative’s contention was that a TDIU is warranted based on the combined effects of the Veteran’s PTSD and migraines. With respect to the Veteran’s service-connected PTSD, of record are two VA examination reports. A March 2014 PTSD DBQ noted a diagnosis of PTSD and noted that such resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Symptoms were noted of depressed mood, anxiety and mild memory loss, such as forgetting names, directions or recent events. In the October 2014 NOD, the Veteran’s representative stated regarding this examination that the “Veteran states that the VA examiner only wanted to know about his in-service stressor, and recounting that event caused him to shut down. The examiner did not ask questions about current level of functioning. For that reason, the exam was inadequate.” A subsequent April 2016 PTSD DBQ noted diagnoses of PTSD and major depressive disorder and stated that the “symptoms are moderate to severe and chronic.” It was noted that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Symptoms were noted of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting and an inability to establish and maintain effective relationships. Also of record are relevant lay statements. A December 2013 statement from the Veteran’s spouse referenced unexplained crying spells, stated that the Veteran “has expressed…deep sadness and being alone,” that “[h]e does not sleep well” and that he “gets up in the middle of the night to check doors and windows.” A December 2013 buddy statement from M.P. stated that the Veteran “has experienced chronically disturbed sleep, nightmares and intrusive daytime thoughts of his military experiences. He has displayed, at times, poor memory, lack of concentration and a tendency to withdraw from social situations and interactions” and that “[h]is current wife has informed family and friends that his depression was always obvious.” Of record is an August 2014 checklist completed by the Veteran where he reported multiple mental health symptoms, to include anger, anxiety, chronic sleep problems, depression, difficulty making decisions, emotional numbing, flashbacks, intrusive thoughts, isolation, lack of emotion, memory loss, nervousness, problems getting along with people, sense of helplessness and unable to share feelings. In the October 2014 NOD, the Veteran’s representative stated that the “Veteran experiences sleep disturbances, and gets up in the middle of the night to check doors and windows. Veteran experiences disturbances of mood that include crying and sudden mood swings,” that “[w]hen triggered, he can have violent outbursts…He restricts his activities because he is concerned about having a violent outburst while in public or being triggered” and that “[h]e also experiences intrusive thoughts, disturbances of motivation and mood, and has experienced difficulty in establishing and maintaining effective work and social relationships over the years.” It was also stated that the Veteran “reports being emotionally detached from people, and having very little patience in his personal life of for other people.” Also of record are VA treatment records dated from 2013 to 2020 that reflected various mental health treatment, to include individual therapy, group therapy and medication management. In general, these records did not reflect symptomatology more severe than what was shown on the April 2016 PTSD DBQ. An exception was a June 2017 treatment note which stated that the “Veteran endorsed occasional suicidal ideation.” With respect to the Veteran’s service-connected TBI, an October 2019 TBI DBQ was completed by a psychiatrist following examination. Various cognitive impairments and subjective symptoms of TBI were noted. This included: objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; social interaction is frequently inappropriate (described as “mood swings, frustration, irritability, apathy impair his social and interpersonal interactions; the claimant has become socially isolated”); mildly impaired visual spatial orientation (described as “occasionally gets lost in unfamiliar surroundings but can navigate with GPS”); three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships (described as “headaches, insomnia with resulting fatigue, hypersensitivity to light and sound”); and one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them (described as “frustration, irritability, apathy, moodiness, impulsivity, anger issues impair domestic and interpersonal interactions”). It was noted that the Veteran’s TBI residuals impact his ability to work and the examiner stated that the Veteran “would experience moderate difficulty in work settings, whether physical or sedentary, due to impaired focus and concentration, memory/recall, headaches, chronic fatigue, mood swings and irritability, and apathy. These symptoms overlap with his [service-connected] PTSD symptoms.” With respect to the Veteran’s service-connected migraines, he was afforded a VA examination on April 14, 2016 and a Headaches DBQ was completed. This examination was slightly prior the effective date of service connection for migraines of April 22, 2016. The DBQ noted that “[h]eadaches occur 3-4 times per week and last less than an hour.” It was further noted that the Veteran experienced headache pain, which was noted as pulsating or throbbing head pain. It was also noted that the Veteran experienced non-headache symptoms associated with headaches and noted was nausea, sensitivity to light and sensitivity to sound. The duration of typical head pain was noted as less than one day. The examiner noted that the Veteran had characteristic prostrating attacks of migraine headache pain and that the frequency of such on average was more frequently than once per month. It was noted, without explanation, that the Veteran’s headache condition did not impact his ability to work. An October 11, 2019 Headaches DBQ was completed following examination. It was noted that the Veteran experienced headache pain, which was noted as pulsating or throbbing head pain. It was also noted that the Veteran experienced non-headache symptoms associated with headaches and noted was nausea, sensitivity to light and sensitivity to sound. The duration of typical head pain was noted as less than one day. The examiner noted that the Veteran had characteristic prostrating attacks of headache pain and that the frequency of such on average was once per month (which was the most frequent option listed). The examiner noted, without explanation, that the Veteran did not have very prostrating and prolonged attacks of pain productive of severe economic inadaptability. It was noted that the Veteran’s headache condition impacted his ability to work and it was stated “decreased ability to concentrate and focus. [O]ften has to slow things down to function.” An October 25, 2019 Headaches DBQ was completed following examination. It was noted that the Veteran “self treats by resting and going into dark room. He gets headaches about twice a week.” It was also noted that the Veteran experienced headache pain, which was noted as pulsating or throbbing head pain and to worsen with physical activity. It was also noted that the Veteran experienced non-headache symptoms associated with headaches and noted was nausea, sensitivity to light, sensitivity to sound, changes in vision and sensory changes. The duration of typical head pain was noted as less than one day. The examiner noted, without explanation, that the Veteran did not have characteristic prostrating attacks of headache pain and that the Veteran did not have very prostrating and prolonged attacks of pain productive of severe economic inadaptability. It was additionally noted, without explanation, that the Veteran’s headache condition did not impact his ability to work. With respect to the Veteran’s service-connected bilateral hearing loss and tinnitus, a March 2014 Hearing Loss and Tinnitus DBQ was completed following examination. It was noted that the Veteran’s hearing loss impacted ordinary conditions of daily life, including ability to work and the impact was described as “Veteran reports that TV needs to be louder, others have to ‘repeat back’ spoken utterance, difficulty getting speech ‘clearly’ in groups settings and when in background noise.” It was also noted that the Veteran’s tinnitus impacted ordinary conditions of daily life, including ability to work and the impact was described as “Veteran reports that the tinnitus sensation affects his ‘concentration’ during his daily activities.” With respect to the Veteran’s service-connected erectile dysfunction, March 2015 and October 2020 Male Reproductive Conditions DBQs indicated that this disability did not impact the Veteran’s ability to work.   Analysis Upon review, the Board finds that, as of April 22, 2016, the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities and that accordingly a TDIU is warranted from that date, but not earlier. With respect to the Veteran’s PTSD, the evidence indicated that the Veteran’s PTSD was manifested by a variety of symptoms, to include the following that would have a significant impact on his ability to work: panic attacks more than once a week, mild memory loss, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. With respect to the Veteran’s TBI residuals, the October 2019 TBI DBQ noted the following cognitive impairments and subjective symptoms that would have a significant impact his ability to work: mild impairment of memory, attention, concentration, or executive functions; social interaction is frequently inappropriate; mildly impaired visual spatial orientation; three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships; and one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both. The DBQ further referenced that the Veteran would have difficulty working “due to impaired focus and concentration, memory/recall, headaches, chronic fatigue, mood swings and irritability, and apathy.” With respect to the Veteran’s migraines, the evidence indicated the presence of headaches multiple times per week (noted as 3-4 per week in the April 2016 DBQ and about twice a week in the October 25, 2019 DBQ) that were noted as manifesting with pulsating or throbbing head pain accompanied by various non-headache symptoms that included nausea, sensitivity to light, sensitivity to sound, changes in vision and sensory changes. The October 11, 2019 DBQ referenced that the Veteran’s headaches would impact his ability to work and noted “decreased ability to concentrate and focus. [O]ften has to slow things down to function” and the October 25, 2019 DBQ noted that the Veteran treated his migraines “by resting and going into dark room.” With respect to the Veteran’s service-connected bilateral hearing loss and tinnitus, the March 2014 Hearing Loss and Tinnitus DBQ indicated that the Veteran had difficulty hearing in group settings and when in background noise and that his tinnitus impacted his concentration. Evaluating the collective impact of the Veteran’s service-connected disabilities, the evidence indicated the presence of various symptoms that would impact his ability to secure or follow, essentially, any type of substantially gainful occupation. The Board finds that the symptoms discussed would impact the Veteran’s ability to obtain and maintain employment, specifically in regard to the impact the symptoms would have on his ability to interact and work with other people, to act appropriately in a work place environment, to perform work related tasks for the duration of a typical work day or shift, to focus and concentrate for sustained periods and to deal with stress, which would all likely be necessary in any employment setting. Impairments in these areas would negatively impact the Veteran’s ability to work in essentially any employment setting. In sum, when considering the collective impact of the Veteran’s service-connected disabilities and the Veteran’s individual circumstances, to include his education, training, and work history, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, from April 22, 2016. This is so because this is the date service connection became effective for migraine headaches. While there was some employment impairment prior to this date, only when combined with the impairment from the headaches is a TDIU shown. Furthermore, there is some indication that the Veteran may not have been precluded, including from June 2017 to July 2019, when he worked as a security guard. On one hand, the Veteran indicated better than marginal employment as there was at least one month at $3000 per month. However, this level of employment does not appear to have been sustained throughout this period as he also indicated that he earned only $1660 in the past 12 months. Thus, the Board finds that any such employment was marginal at best. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In sum, the Board concludes that a TDIU is warranted, effective April 22, 2016, but no earlier. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.