Citation Nr: 21023190 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-36 999 DATE: April 20, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU), from January 1, 2015, is granted. FINDING OF FACT 1. From January 1, 2015 the Veteran’s service-connected disabilities prevented him from engaging in substantially gainful employment. 2. Prior to January 1, 2015, the Veteran maintained substantially gainful employment. CONCLUSION OF LAW From January 1, 2015, the criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1973 to March 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board remanded the claim for additional development. This development is substantially completed, and the claim is returned to the Board for continued appellate review. Entitlement to a total disability rating due to individual unemployability TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining entitlement to a TDIU, 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). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Id. Marginal employment generally shall be deemed to exist when a Veteran’s earned annual 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). 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 age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2015). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert V. Derwinski, 1 Vet. App. 49 (1991). In August 2015, the Veteran filed a claim seeking entitlement to a TDIU. The Board notes, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110(a); 38 C.F.R.§ 3.400. In a claim for increased rating, if it is factually ascertainable that an increase in disability occurred within the one-year period prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400(o)(2). Generally, a claim for a TDIU is thought of as equivalent to an increased rating and, as such, 38 C.F.R. § 3.400(o) should be applied. See Hurd v. West, 13 Vet. App. 449 (2000). Accordingly, the Board must determine whether it is factually ascertainable that the Veteran became unable to obtain and maintain gainful employment due to his service-connected disabilities within the year before he filed his claim. In June 2020, the Veteran submitted a TDIU claim form. He reported that he completed the 11th grade (other records indicate the Veteran completed high school) and he was most recently employed as a salesclerk for Atlanta Airport Retail Management. He stopped working in 2016. The specific date his employment ended was not provided. In November 2020, the Veteran submitted an employment information statement from Airport Retail Management. His employer documented the Veteran worked as a retail associate and transferred to a position as a host in the café to accommodate an arm injury (not service connected.) The employer noted Veteran’s last worked in October 2015, but his employment ended in April 2016. Treatment records from the Clayton Center include the Veteran’s October 2014 report that he worked as a cashier at the airport and his January 2015 report that he worked as a host at the airport. In a June 2020 letter, the Veteran’s representative asserted the Veteran was unable to obtain and maintain gainful employment from January 1, 2015. Tax documents, confirming annual wages of over $16,745 in 2014, $6,283 in 2015, and $1,800 in 2016, were submitted to support the claim. Additional tax documents show the Veteran did not report any wages in 2017, 2018 or 2019. The poverty level established by the U.S. Department of Commerce, Bureau of the Census for a single person in 2014 was yearly earnings of $12,071. The poverty level for a single person in 2015 was yearly earnings of $12,082. The poverty level for a single person in 2016 was yearly earnings of $12,228. See Poverty Thresholds, United States Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited April 14,2021). Per the information listed on the tax documents, prior to January 1, 2015, the Veteran’s earnings were above the poverty level. His employment was more than marginal. While the Veteran continued to earn some wages in 2015 and 2016, this income was not above the poverty level. Therefore, from January 1, 2015, his employment was marginal. Over the period in question, service connection is established for an acquired psychiatric disorder, including major depressive disorder. This condition is rated as 50 percent disabling. Service connection is also established for headaches, rated as 30 percent disabling, and pseudofolliculitis barbae (PFB), rated as noncompensable prior to November 2019 and as 10 percent disabling thereafter. From April 2020, service connection is also established for tinnitus. Tinnitus is rated as 10 percent disabling. From January 1, 2015, the schedular requirement for TDIU is met. 38 C.F.R. § 4.16(a). Multiple treatment records and mental health evaluations are associated with the claims file. In January 2015, the Veteran underwent an initial psychiatric evaluation at the Clayton Center. The examiner noted his attitude was very negative. He was angry and hostile at times. His insight and judgement were poor. He had difficulty with focus and concentration. In May 2015, a psychological evaluation indicated a diagnosis of depressive disorder. The psychologist observed the Veteran was cooperative, but not outgoing. He was generally disgruntled, but not tense or anxious. His attention span and concentration were good. His speech was lucid and relevant, and his memory was adequate. The psychologist found, the Veteran would be able to adequately relate to supervisors and coworkers. An October 2015 VA mental disorders examiner diagnosed paranoid personality disorder (not service connected) and major depressive disorder (serviced connected). The examiner stated the symptoms of each condition could be differentiated and he found the Veteran’s sullen mood, low energy, loss of pleasure, erratic appetite, feelings of worthlessness, and passive thoughts of dying were due to major depressive disorder. She did not state whether these symptoms would impact the Veteran’s ability to work. A November 2015 psychological status examination confirms a diagnosis of major depressive disorder. The report concludes the Veteran may have difficulty completing tasks in a timely fashion due to difficulty with concentration, persistence, and pace. He was likely to have difficulty interacting with peers, supervisors, and the public because of irritability. His mental health condition would make adapting to the stress of a typical work environment difficult. In April 2019, a VA mental health evaluation was provided. The examiner indicated symptoms of dysphoria, social withdrawal, irritability, and anger were associated with the Veteran’s service-connected major depressive disorder. He stated the Veteran would have occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. He attributed the majority of the Veteran’s disability to the symptoms associated with his depressive disorder. In November 2020, another VA mental health examination was provided. The examiner diagnosed unspecified personality disorder and major depressive disorder. He identified symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, speech intermittently illogical, impaired judgment, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. It was not possible to differentiate which symptoms were attributable to each diagnosis. The Veteran was described as notably irritable, distrusting of others. He was moderately alert and somewhat oriented to person, place, and time. The examiner observed the Veteran’s psychiatric disorders would cause occupational and social impairment with reduced reliability and productivity. It was not possible to differentiate the amount of impairment attributed to each diagnosed condition because the symptoms of each disorder overlapped. The same examiner also provided a November 2020 individual unemployability statement. In this statement, he indicated the Veteran would have no job-related difficulties secondary to his service-connected mental health issues. However, distrust and paranoia, attributed to unspecified personality disorder, would impact his ability to work. In February 2021, a VA mental disorders examination was provided. The examiner diagnosed major depressive disorder. He noted the Veteran had difficulty with dysphoric mood, irritability, lack of motivation, and trouble concentrating. Angry outbursts and poor impulse control caused the Veteran to be withdrawn and to have difficulty being around others. The examiner opined the Veteran’s depressive symptoms would make it difficult to maintain consistent work attendance, be productive, interact with others, and receive critical feedback. Several evaluations of the Veteran’s headache disability are associated with the claims file. A September 2014 VA headache examination documents the Veteran’s report of prostrating attacks of headache pain more than once each month. The pain was relieved with rest and lying down. The examiner explained the headaches impacted the Veteran’s ability to work because they prevented strenuous activity and caused difficulty concentrating. An October 2020 VA headache examination also diagnosed a headache disability with characteristic prostrating attacks once each month. The examiner observed the condition would impact the Veteran’s ability to work because he would need to take breaks and he would have difficulty concentrating. In November 2020, Dr J. S., a neurologist, evaluated the Veteran’s headaches. He noted the Veteran experienced two or three severe headaches each week. Each headache lasted for two to three hours. The headaches were relieved by lying still. He stated the Veteran was unable to work while he had a headache. In November 2019, October 2020, and November 2020, VA examiners observed the Veteran’s service connected PFB would not impact his ability to work. In August 2020, a VA examiner noted the Veteran’s service connected tinnitus would impact his ability to work. She noted tinnitus sometimes interfered with the Veteran’s sleep, affected his mood, and caused irritability. Finally, a May 2020 vocational opinion from K.M.D. indicated that the Veteran would more likely than not be unable to secure and follow substantially gainful employment, including unskilled sedentary employment, due to his service-connected conditions. The vocational consultant noted that the Veteran’s service-connected depressive disorder would contribute to his inability to sustain adequate pace and productivity due to well documented symptoms of depressed mood, anxiety, suspiciousness, memory loss, fatigue from sleep impairment, and concentration and memory issues. Further, the Veteran’s symptoms of impaired and poor impulse controls, unprovoked irritability, and isolative behavior, would interfere with his ability to interact appropriately and effectively with others, as is required in all employment. After resolving the benefit of reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted. The Veteran’s service-connected major depressive disorder is associated with symptoms of irritability, sullen mood, low energy, anxiety, suspiciousness, sleep problems, impaired judgement, and difficulty in establishing and maintaining relationships. These symptoms would interfere with the Veteran’s ability to return to work in a retail or restaurant job because he would have difficulty interacting with supervisors, coworkers, and customers. His sullen mood and low energy would limit his ability to retrain or to work independently. Sleep difficulty and low energy would limit his ability to complete tasks in any work situation. The Board also notes his headache disability would interfere with employment because the Veteran has hours-long headaches more than once each month. During these headaches, he would be unable to perform any work duties. Thus, the Board finds that the criteria for a TDIU have been met from January 1, 2015. 38 C.F.R. §§ 3.340, 3.341, 4.16. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.