Citation Nr: 21014356 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-40 722 DATE: March 12, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected posttraumatic stress disorder (PTSD) renders him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a September 2019 decision, the Board denied this claim. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (CAVC). The Office of the General Counsel for VA and the Veteran (collectively referred to as “the Parties”) resolved that appeal by way of a Joint Motion for Remand (JMR). The Parties found that the Board erred by failing to discuss the relevant factors for a TDIU claim as laid out in Ray v. Wilkie, 31 Vet. App. 58 (2019). On remand, the Board was to comply with that case and provide an adequate statement of reasons or bases for its determination. See September 18, 2020, JMR at 2–4. By a September 29, 2020, Order, the CAVC adopted the Parties’ JMR and remanded this claim to the Board. Thus, it is against this backdrop that the Board now will readjudicate the Veteran’s TDIU claim. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A finding of total disability is appropriate when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15, 4.16. A claim for TDIU presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34–35 (1994). Where the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, 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, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. Marginal employment, however, is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Because VA has failed to define them, the CAVC has offered guidance on what it means to “secure or follow substantially gainful employment.” This phrase includes both an economic and non-economic component. Ray, 31 Vet. App. at 72. The economic component requires that a veteran’s income be lower than the federal poverty threshold. The non-economic component includes assessing a veteran’s education, training, and work history, with the ultimate question being whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ibid. A February 2010 VA medical center (VAMC) note indicates that the Veteran worked for twenty years at various proprietary schools as a director. Dr. E.T., the Veteran’s private psychologist, completed a November 2015 psychiatric disability benefits questionnaire (DBQ) and a Psychosocial Assessment. Between the two documents, it is noted that the Veteran last worked in 2014 for a vocational school as the director of admissions and was let go due to a change in administration. Between 1970 and 2013, the Veteran had at least thirty different jobs, including owning his own hair salon/barbershop. Dr. E.T. notes that the Veteran has struggled with authoritative figures and supervisors throughout his employment history and that his skill set ranges from unskilled, sedentary, and skilled. Dr. E.T. states that the Veteran experiences frequent bouts of irritability and outburst of anger with impaired concentration. His mind easily wanders, and he becomes defocused. The Veteran has many unfinished projects at home. Pertinent, noted symptoms include disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work and a work-like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. A February 2016 VA psychiatric examination is of record. As it pertains to the Veteran’s occupational history, the Veteran reported working for a telephone company until 1987 when he began working for various colleges as a recruiter and director of admissions. For the past couple months, the Veteran reported working for Uber as a driver. The noted symptoms on this examination largely coincide with the symptoms noted by Dr. E.T. In a February 2016 VAMC suicide risk assessment, the Veteran indicated that he last experienced thoughts of suicide in 2014 when he lost his job but that he had not experienced any thoughts since then. The VA examiner noted that the Veteran had “significant work issues.” On his August 2016 VA Form 9, the Veteran stated the following: “My ability to secure employment compensation due to not finding a job due to PTSD. I know my age and back problems don’t help but many don’t hire with it. My PTSD is service related and has been a problem my whole life personally and in business.” Associated with the claims file are records from VA’s vocational rehabilitation education (VRE) program. Of importance is a February 2018 letter stating that VRE services are not suitable for the Veteran because return to employment is not feasible. The first of many listed reasons used by the VRE counselor to deny benefits was “Presistant [sic] difficulties at work due to getting confrontational and difficulties managing irritability.” On his January 2018 formal application for TDIU, the Veteran noted that he last worked full time in April 2015 as a recruiting manager for a college, earning $6,666.00 per month. Until November 2015, the Veteran was working for Uber as a driver; no income is reported for that job. The application indicates that the Veteran has completed two years of college. The Board first stresses that, prior to the rating decision on appeal, which denied entitlement to TDIU, the Veteran specifically never claimed that benefit. Instead, an April 2016 decision, the RO deferred adjudication of that issue in connection with the Veteran’s award for service connection for PTSD, finding that it needed more information regarding the Veteran’s employment history. Thus, the Board finds that that RO, in conjunction with the initial rating for PTSD, raised the issue of entitlement to TDIU. Therefore, the appellate period for TDIU mirrors that of the Veteran’s service connection claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Veteran was awarded an effective date of September 15, 2015—the day he filed his VA Form 21-0966. Thus, September 15, 2015, is the earliest possible day he could receive TDIU. The Veteran was awarded an initial 70 percent disability rating for his PTSD, so he meets the schedular criteria for TDIU for the entire period on appeal. See 38 C.F.R. § 4.16(a). Thus, the only question for the Board is whether the Veteran’s service-connected PTSD prevents him from securing or following a substantially gainful occupation. Evaluating the evidence of record, the Board finds it does. Turning first to the economic factor in Ray, the record does not reflect that the Veteran has been earning more than the federal poverty threshold since he last worked full time in April 2015, which would have required an annual income of at least $11,770.00. See https://aspe.hhs.gov/prior-hhs-poverty-guidelines-and-federal-register-references (hereinafter “Poverty Data”). While the Veteran drove for Uber until November 2015, there is no indication how much he was earning during those presumably seven months. It is noted, however, that there is significance of this non-report because the claim of TDIU relates back to the September 15, 2015 claim, which coincides roughly to the November 2015 termination of substantially gainful employment. The Board next must assess the non-economic factors—the Veteran’s education, training, and work history—as laid out in Ray. While the timeline of the Veteran’s work history appears jumbled, it has run the gambit. The Veteran has worked for a telephone company, owned his own barber shop, worked for various colleges in recruitment and admissions, and drove for Uber. The Veteran even has two years of college education. Be all that as it may, the record reflects that the Veteran’s service-connected PTSD currently prevents him from securing or following a substantially gainful occupation. Recall above that both Dr. E.T. and the VA examiner observed largely the same symptoms in the Veteran, to include impaired impulse control, such as unprovoked irritability with periods of violence. VA’s VRE program already has determined that the Veteran’s inability to manage his irritability and confrontation with others is a reason that VRE services are not suitable for him. The Veteran himself and the 2016 suicide risk assessment also indicate that he experiences issues with employment due to PTSD. All this pertinent evidence leads to the same conclusion: The Veteran has difficulty managing his irritability, which results in an inability to properly and effectively work and associate with others. This conclusion is corroborated by medical professionals throughout the claims file. While the record reflects that the Veteran may be able to participate in some employment where there is no direct supervisor, such as driving for Uber, there is no indication that the Veteran’s irritability is limited only to those in a supervisory role. There is nothing to suggest that this irritability also would not be experienced by the hypothetical patrons he would serve. Furthermore, there is no evidence that in the time period between the date of claim in September 2015 and the November 2015 stoppage of work that such a job could yield enough income to sustain the Veteran above the current federal poverty threshold of $12,880.00. See supra Poverty Data. Thus, the Board finds that the Veteran’s service-connected PTSD renders him unable to secure or follow a substantially gainful occupation, and his appeal is granted. See Ray, 31 Vet. App. at 72; 38 C.F.R. § 4.16(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.