Citation Nr: 21013795 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-09 644 DATE: March 10, 2021 ORDER The issue of entitlement to a total disability rating based on individual unemployability (TDIU), beginning December 9, 2020, and thereafter, is dismissed. The issue of entitlement to a TDIU for the period prior to December 9, 2020, is granted. FINDINGS OF FACT 1. Since the Veteran was granted a 100 percent disability rating for his service-connected posttraumatic stress disorder (PTSD), effective December 9, 2020, as well as a special monthly compensation (SMC) for having over 60 percent evaluation for additional disabilities, effective December 9, 2020, an award of TDIU after that date could result in no further benefit. 2. For the period prior to December 9, 2020, the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. There is no question of law or fact remaining involving the claim of entitlement to a TDIU, for the period beginning December 9, 2020, and thereafter, and the appeal from that date is moot. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 4.14, 4.16 (2020). 2. Entitlement to a TDIU is warranted for the period prior to December 9, 2020. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1968. The Veteran served in the Republic of Vietnam from February 1966 to October 1967 and was awarded a Purple Heart Medal. In September 2020, this matter was remanded by the Board for additional development. 1. Entitlement to a TDIU, beginning December 9, 2020, and thereafter. The issue of entitlement to a TDIU, beginning December 9, 2020, and thereafter, is moot, and therefore, dismissed. Subject to additional factors, a TDIU may be assigned “where the schedular rating is less than total.” 38 C.F.R. § 4.16 (a). Following the September 2020 Board remand, the Veteran’s service-connected PTSD evaluation was increased from 50 percent to 100 percent disabling, effective December 9, 2020. See Rating decision, December 2020. As a total (100 percent) disability rating has been assigned for service-connected PTSD, effective December 9, 2020, there remains no time beginning December 9, 2020, and thereafter, where the schedular rating is “less than total,” as required for a TDIU. See 38 C.F.R. § 4.16 (a). The Board is cognizant of the fact that the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating may still form the basis for assignment of SMC pursuant to 38 U.S.C. § 1114 (s). See Bradley v. Peake, 22 Vet. App. 280 (2008). However, in the December 2020 rating decision, the Veteran was also awarded SMC pursuant to 38 U.S.C. § 1114 (s), effective December 9, 2020. For this reason, the issue of entitlement to a TDIU is now rendered moot, effective December 9, 2020, leaving no question of law or fact to decide regarding the TDIU issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, the issue of entitlement to a TDIU, beginning December 9, 2020, and thereafter, is dismissed. 2. Entitlement to a TDIU for the period prior to December 9, 2020. Legal Criteria A veteran may be awarded TDIU benefits “where the schedular rating is less than total” and if he is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). VA may consider the level of education, special training, and previous work experience in making this determination, but may not consider the Veteran’s age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Medical evidence describing the effect of each disability on the Veteran’s occupational functioning is crucial to permit the Board to arrive at an assessment of employability. See 38 C.F.R. § 4.1. However, the question of whether the Veteran’s service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board’s determination to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 C.F.R. § 4.16(a) as support for the finding that the applicable regulatory provisions “place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Therefore, the Board reviews the medical evidence in the context of the other evidence of record prior to reaching a conclusion regarding the Veteran’s employability. In addition, a TDIU may be assigned 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, benefit of the doubt shall be given to the veteran. 38 U.S.C. § 5107(b). The Board has fully reviewed all the evidence in the Veteran’s claim file, but focuses specifically on the evidence needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Rating Criteria and Employment The Board finds that the Veteran meets the criteria for entitlement to a TDIU. First, the Veteran meets the threshold disability rating requirements. He has a 60 percent disability rating for one of his disabilities since August 25, 2012, and a combined rating of 80 percent disabling since that date. In addition, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities since his retirement in August 2012. An application for entitlement to a TDIU was received in May 2016. In the application, the Veteran noted his service-connected disabilities of PTSD and heart condition. The Veteran indicated that he last worked full-time in August 2012, at which point he became too disabled to work. The Veteran indicated that he had attempted to obtain employment at temporary agencies and volunteer groups, but had no earned income in the last twelve months. A VA Form 21-4192, received in August 2016 from the Veteran’s former employer, confirms that his last date of work there was in August 2012. The Veteran was noted to have retired. Regarding his employment status, the Veteran clarified in January 2019 correspondence: I never wanted to quit my job. I know I used the word retire, I was ready to harm someone. . . . When I left I intended on looking for work. . . . I never made it to any location to seek work. I would start doubting myself and would turn around and go home. . . . I thought about doing volunteer work read what I have stated above. It got to the point that I would get depressed even thinking about it. In an October 2019 statement, the Veteran reiterated that he has not worked since 2012. More recently, the December 2020 VA examination for PTSD states that the Veteran does not work. Service-Connected Disabilities Having established that the Veteran meets the rating threshold criteria, and that he is unemployed, the Board turns next to the impact the Veteran’s service-connected disabilities have on his employability. Presently, the Veteran is service connected for the following disabilities: PTSD; ischemic heart disease (IHD); tinnitus; residuals of shrapnel wound, left upper extremity (minor); residuals, shrapnel wound, left calf, muscle group XI; residuals, shrapnel wound, left thigh, muscle group XIII; residuals, shrapnel wound, right thigh; scars, surgical associated with IHD; and scar, surgical saphenous vein harvest, right lower leg associated with IHD. Service-Connected PTSD The Board first turns to the Veteran’s service-connected PTSD. The Board’s analysis begins with the most recent VA examination regarding this disability, which took place in December 2020. As discussed above, the Board is aware that the Veteran was awarded a 100 percent disability evaluation for his service-connected PTSD, as of the date of this examination, and the issue of entitlement to a TDIU now pertains to the period prior. Nevertheless, this examination was requested by the Board in its September 2020 remand to address deficiencies identified in the December 2019 VA examination. Accordingly, the Board finds the December 2020 examination to be pertinent to the prior period. The December 2020 VA examination report notes only one mental disorders diagnosis, that of PTSD. The examiner states that all of the symptoms that the Veteran has “point to PTSD.” These symptoms include, inter alia, flashbacks, stress, anxiety, panic-attacks, paranoia, and social withdrawal. The examination report notes that the Veteran “gets so caught up in thoughts, visions, memories of trauma from Vietnam the [sic] he often finds himself somewhere, wonders why is he there, where he is at, what is he there for. Vet has to take a moment to collect himself to continue on.” It was noted that the Veteran has anger, irritability, impatience, and gets mad easily. He was reported to be jumpy and restless. It was also noted that the Veteran has quit driving due to road-rage paranoia. The examiner indicated that the Veteran has total occupational and social impairment. Accompanying the December 2020 PTSD VA examination report is an assessment of the Veteran’s employability specifically. It lists, inter alia, the following regarding the Veteran’s employability as due to his service-connected PTSD. For example, the Veteran: “has difficulty attending to or is easily distracted from the task at hand”; “has difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task”; “has intrusive thoughts which interfere with the ability to stay focused on the task at hand”; and “has significant difficulty remembering instructions and details of work assignments.” The examination report also notes the following interpersonal difficulties. For example, the Veteran: “has significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict)”; “has significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others.” In addition, the Veteran “cannot tolerate being around other people in any setting for more than a few minutes.” The report also notes that he “has other mental health problems or symptoms, e.g., panic attacks, irritability, suspiciousness, etc., that interfere significantly with the ability to work.” Regarding this last point, the examiner expounded that the Veteran’s, inter alia, severe stress, anxiety, panic attacks, depression, suspiciousness, paranoia, and quick temper are all a part of his PTSD. The examiner opined that the Veteran “should be highly considered Permanently & Totally disabled in that he is not functional now and will more likely that [sic] not never improve later.” The Board acknowledges that the examiner also mentioned briefly the Veteran’s age, which the Board does not consider in its employability determination. However, overall, the examiner’s analysis focused on the Veteran’s PTSD symptoms and their impact on employability. Finally, the Board notes that the December 2020 VA examination report states that the Veteran “suffers from Spatial Disorientation. This is because he is so deep in thought regarding his PTSD stressors that he at times becomes disoriented as to where he is at and what he is doing.” The Board finds the December 2020 VA examination reports particularly persuasive in light of the Veteran’s employment history. The Veteran submitted substantial evidence of difficulties he encountered in his prior employment. These difficulties appear to reflect the PTSD symptoms identified, such as flashbacks and perhaps panic attacks. For example, documents show that the Veteran had difficulty with individuals approaching him from behind in his cubicle. In one document, the Veteran describes the following encounter with another individual in the office, which took place in December 2006: I was sitting at my desk; she came up behind me, but this time from my 1eft side, and very quickly pushed her way passed me, said something and her hands and elbows landed on my desk. Her shoulder or arm brushed me. This all seemed to have happened in a split second, I turned my head, saw her, my mind started going places I didn’t want to go. I think I pushed back to get away from her. I know my hands were on my face and trying to clam [sic] myself down. See Complaint, January 2007. Similarly, after feeling something on his shoulder while an individual moved quickly past him at his desk, the Veteran reported he experienced flashbacks, which continued “for the next 2 hours.” Id. He stated that he “had to leave but knew I couldn’t drive because I couldn’t stay focused.” Id. In a June 2008 letter to a Human Resources Manager, the Veteran describes a February 2007 incident in which another individual “walks in behind me, puts his hand on my shoulder and starts talking to me. I had to regain my composure, get up and walk out, find a secure place and wait until my head cleared so that I could go home. There was also some time spent in the parking lot.” See Veteran’s correspondence, June 2008. Documents also show that the Veteran requested accommodation regarding individuals approaching him from the rear of his cubicle. See, e.g., Supervisor’s correspondence, June 2007. In addition to the above, documents also show issues regarding noises in the office, including “staff cell phones with blaring rings,” and staff use of speaker phones. See Veteran’s correspondence, September 2008. The Veteran also describes having to leave work “because of the rage I was feeling. I would get drunk and drive down to” the hospital to see a PTSD nurse. See Veteran’s correspondence, January 2019. The Board acknowledges the PTSD VA examinations from June 2016 and December 2019; however, these VA examinations contain inadequacies that necessitated Board remands in December 2018 and September 2020. For example, while the June 2016 VA examination provided an in-depth report of the Veteran’s employment difficulties, it remained unclear to the Board whether these accounts could be connected solely to the Veteran’s service-connected PTSD. For example, the examination report noted that “[e]ven with direct solicitation, [the] Veteran did not reference any specific stressor or symptom which would reasonably account for some of the problems he found most offending in his written account (e.g., use of ringtones, wanting closed blinds, etc.).” In response to this examination, the Board notes that the December 2020 VA examination clarifies that the Veteran’s reported symptoms are connected to his PTSD. Further, the Veteran himself has described why he perhaps did not address his Vietnam experience at this examination. In January 2019 correspondence, the Veteran wrote: “The problems that I’ve had for a long time I was told at one of my VA physicist [sic] or a C&P we don’t discuss what happen [sic] in Vietnam but what has happen [sic] to you since your last visit. I don’t like even today wanting to dig deep in my soul about Vietnam. Why do I want to get pissed off and stay really depressed the rest of the day.” The December 2019 VA examination was also problematic, as was outlined in detail in the September 2020 Board remand. There, the Board found that a new examination was needed for a number of reasons. For example, regarding the evaluation of occupational and social impairment, the December 2019 VA examination report indicated that the Veteran has “[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” However, in making this finding, the report also states that “[i]t must be noted that this is not the examiner’s specific expertise and the opinion being given is, therefore, speculative and impressionistic to an almost unacceptable degree.” Given this statement, the Board found that re-evaluation with a new examiner was appropriate. The Board also noted that the December 2019 VA examination’s finding regarding occupational and social impairment suggested an improvement from the June 2016 VA examination report which noted: “Occupational and social impairment with reduced reliability and productivity.” However, the Veteran described himself as worse than the last examination, and the Board notes that suicidal ideation was indicated at the December 2019 examination, but denied at the June 2016 examination, suggestive of a worsening disability. Finally, the June 2016 VA examination, in addition to PTSD, had noted a diagnosis of adjustment disorder with depressed mood, chronic. This diagnosis was not listed by the December 2019 VA examiner, but rather a new second diagnosis was listed of specific phobia. The examiner stated that the Veteran had a “phobic response” to a 2012 incident in a parking lot at his prior employment and this keeps him from attempting to work. The Board notes that in addition to not addressing the June 2016 diagnosis, this rationale does not adequately address the Veteran’s claims of other workplace difficulties contained in the file. These incidents were outlined in detail in the June 2016 VA examination report. Given the above identified inadequacies of the June 2016 and December 2019 VA examinations, the Board affords them little probative weight. The Board finds the December 2020 VA examination reports to be more competent and credible accounts of the Veteran’s PTSD disability and its impact on his employability. Other Service-Connected Disabilities As listed above, the Veteran is service connected for a number of other disabilities. The Board notes the following evidence contained in VA examination reports that touches on the Veteran’s employability. A June 2016 VA examination report states that the Veteran’s heart condition impacts his ability to work as he is “[u]nable to do prolonged strenuous physical exertion” and “[h]as difficulty walking long distances.” It also notes that the Veteran is “[u]nable to do heavy lifting. The examiner noted that the Veteran’s disability would not impact sedentary employment. Similarly, a November 2019 VA examination report for his heart disability notes that it would be best if the Veteran avoided “strenuous physical employment”; however, in the examiner’s opinion, the “Veteran has no functional impairments from” his service-connected disability “which would render him unable to do sedentary employment.” A December 2019 VA opinion regarding the impact of the Veteran’s service-connected tinnitus on his employability noted that while tinnitus by itself might not be a barrier, it could “cause some problems depending on the vocation.” The Veteran “reports difficulty concentrating, hearing some high pitched sounds, and occasional difficulty hearing conversation because of the tinnitus. He may have trouble working well in very noisy environments, and in environments which required him to often use non face-to-face communications equipment (such as telephones, speakers, intercoms, etc.), or in jobs which required a great deal of attention to high pitched sounds (such as monitoring medical equipment or other ‘beeps and pings’).” A December 2019 VA opinion regarding the impact of the Veteran’s service-connected shrapnel wound residuals on his employability noted that “the Veteran can likely entertain moderate physical and sedentary occupational and employment activities which don’t involve prolonged pushing, pulling, reaching overhead, lifting and carrying heavy objects, prolonged standing, jumping, squatting, running and repetitive twisting/bending activities . . . .” Conclusion Upon careful consideration of the evidence of record, the Board finds that the Veteran is entitled to a TDIU for the period prior to December 9, 2020. That is, the Veteran meets the disability rating thresholds, and has demonstrated that he has been unable to secure or follow a substantially occupation since his retirement in August 2012, due to his service-connected disabilities. The Board finds persuasive the medical and lay evidence that demonstrates the Veteran’s limitations in an office setting. Indeed, the Veteran has presented substantial documentation demonstrating the challenges he faced in his prior employment, and the December 2020 VA examination reports have convincingly connected the symptoms surmised from the employment documents with the Veteran’s service-connected PTSD symptoms. These limitations combined with the medical evidence showing the Veteran’s physical limitations due to his service-connected disabilities, have established for the Board that the Veteran is unemployable.   Based on the above, Board concludes that a TDIU, for the period prior to December 9, 2020, is warranted. 38 C.F.R. § 4.16 (a). The issue of entitlement to a TDIU for the period prior to December 9, 2020, is granted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.