Citation Nr: 21023276 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-02 725 DATE: April 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the service-connected posttraumatic stress disorder (PTSD) with sleep impairment as likely as not renders the Veteran unable to secure or follow substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to January 1986 and July 2004 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was remanded by the Board in November 2017 for additional development. In September 2019, the Board denied entitlement to a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claim (Court). In a June 2020 Joint Motion for Remand (Joint Motion), the parties requested that the Court vacate and remand the September 2019 Board decision, which the Court granted in a July 2020 Order. In the Joint Motion, the parties determined that the Board failed to provide an adequate reasons and bases for its decision to deny a TDIU when it did not adequately discuss how the appellant’s PTSD symptoms impact his ability to perform the physical and mental acts required for employment. 1. Entitlement to a TDIU based on service-connected PTSD with sleep impairment VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching this 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, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A total disability rating may be assigned on a schedular basis when the schedular rating is less than total and, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is rated at 40 percent or more, and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service connected for PTSD with sleep impairment, rated as 70 percent disabling, effective January 9, 2009. He has no other service-connected disabilities. Therefore, he meets the schedular requirements for the assignment of a TDIU under 38 C.F.R. § 4.16(a) from January 9, 2009. After reviewing the record and resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted. The record indicates that the Veteran is diagnosed with PTSD, which is service-connected, and schizoaffective disorder, which is a nonservice-connected psychotic disorder. Thus, the issue for the Board is whether the symptoms attributed to PTSD render the Veteran unable to perform the physical and mental acts required of gainful employment that is consistent with his education and work history. In the Veteran’s February 2010 VA Form 21-8940, he indicated that he is unemployed and last worked in March 2009. It further noted that his previous two positions were part-time as a truck driver with a moving company from 2006 to 2007, working 20 to 30 hours per week, and as a day laborer from 2007 to March 2009, working 15 to 20 hours per week. He indicated that he has a high school education and is unemployable due to his PTSD and sleep disorder. The record does not show that the Veteran received any other training or education. During the February 2017 Board hearing, the Veteran testified that his PTSD prevents him from functioning in an employment environment. He described symptoms of flashbacks, sleeping disturbances, difficulty interacting with others, isolation, exaggerated startle response, and difficulty with concentration and memory. He stated that his wife keeps track of his medications and manages his symptoms and daily activities. In March 2010, the Veteran was granted disability benefits by the Social Security Administration (SSA) due to PTSD and depressive disorder. The Board notes that SSA determinations are not dispositive or binding on VA since the agencies have different disability determination requirements. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). VA treatment records reflect ongoing treatment for the Veteran’s psychiatric conditions and reported symptoms of hypervigilance, irritability, angry outbursts, intrusive thoughts, isolation, auditory hallucinations, depression, avoidance, nervousness, impairment in mood and motivation, exaggerated startle response, and problems with memory and cognition, including difficulty remaining focused on relevant details, understanding ideas and tracking conversation. See, e.g., VA treatment records in March 2009, May 2014 and August 2014. As to which of these symptoms are attributable solely to the Veteran’s PTSD or both a combination of PTSD and the psychotic disorder, but not solely to his psychotic disorder, the record contains probative evidence in favor of and against the claim. An April 2010 VA PTSD examiner attributed symptoms of nightmares, irritability, difficulty falling and staying asleep, and a tendency to be easily startled by loud noises or sudden appearances to his PTSD. The examiner attributed paranoia, auditory hallucinations, and speech impairment to his psychotic disorder. He attributed isolation, anxiety, and frustration to both diagnoses. The examiner concluded the Veteran is not competent to handle his own funds because of his scatteredness, difficulty with memory, lack of focus and overwhelming anxiety at times. Although he concluded the Veteran is not considered to be completely unemployable due to his PTSD alone, he opined that both disorders combined would prevent him from working at anything meaningful.   A December 2017 VA PTSD examiner attributed symptoms of anxiety, near-continuous panic affecting the ability to function independently, appropriately and effectively; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships to the Veteran’s PTSD. He attributed symptoms of auditory hallucinations and depression to the psychotic disorder. Additionally, the examiner noted that the Veteran’s PTSD was manifested by intrusive memories and dreams; persistent avoidance of stimuli; negative altercations in cognitions and mood, including markedly diminished interest or participation in significant activities and feelings of detachment and estrangement; irritable behavior and outbursts; hypervigilance, exaggerated startle response; and sleep disturbances and that these symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning. He summarized the level of occupational and social impairment as reduced reliability and productivity. In a February 2021 vocational assessment submitted by the Veteran, a private consultant opined that the PTSD and sleep impairment as least as likely as not render the Veteran unable to secure and following substantially gainful employment, including sedentary skilled or unskilled employment. He concluded that the Veteran’s PTSD and sleep impairment as likely as not preclude him from meeting the standard workplace requirements of pace, productivity, reliability and workplace communications, even in an unskilled work role on a consistent basis, due to the Veteran’s service-connected symptoms of unprovoked anger, irritability, chronic sleep impairment with daytime somnolence, suicidal ideation, flashbacks, mood swings, anxiety, significant difficulty interacting with others, and difficulties with memory, concentration, recalling information and interacting effectively and appropriately. After reviewing the record and considering the functional impairment noted in the lay and medical evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected PTSD with sleep disorder as likely as not render him unable to perform the mental acts required of gainful employment that is consistent with his education and work history. The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, after resolving all doubt in the Veteran’s favor, entitlement to a TDIU is granted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.