Citation Nr: 21023815 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-29 164A DATE: April 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder including posttraumatic stress disorder (PTSD) and a major depressive disorder is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. A February 2021 rating decision granted service connection for an acquired psychiatric disorder diagnosed as PTSD and a major depressive disorder. 2. The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal for entitlement to service connection for an acquired psychiatric disorder diagnosed as PTSD and a major depressive disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Army from March 1969 to March 1971. In May 2018 and February 2020,the Board of Veterans’ Appeal (Board), among other things, remanded the above issues for further development. Entitlement to service connection for PTSD. The Veteran initially appealed the issue of entitlement to service connection for an acquired psychiatric disorder including PTSD and a major depressive disorder. Thereafter, a February 2021 rating decision granted him service connection for an acquired psychiatric disorder diagnosed as PTSD and a major depressive disorder. The Board finds that this rating decision granted the Veteran the full benefits under the law when it granted his service connection claim. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (held that the regional office’s award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). Accordingly, because there is no case or controversy for appellate review, the Board finds that the Veteran’s claim of service connection for an acquired psychiatric disorder diagnosed as PTSD and a major depressive disorder is dismissed. See 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Entitlement to TDIU The Veteran claims he is entitled to a TDIU because his service-connected disabilities prevent him from working. Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: • PTSD with major depressive disorder rated as 30 percent disabling from April 11, 2012, and 50 percent disabling from January 29, 2021; • coronary artery disease rated as 100 percent disabling from May 12, 2016, and 30 percent disabling from September 1, 2016; • diabetes mellitus rated as 20 percent disabling from April 11, 2012; • right leg peripheral neuropathy rated as 20 percent disabling from April 11, 2012; • left leg peripheral neuropathy rated as 10 percent disabling from April 11, 2012; • tinnitus rated as 10 percent disabling from March 28, 2011; • bilateral hearing loss rated as noncompensable from March 28, 2011, and 10 percent disabling from April 11, 2012, and • post-operative scar rated as noncompensable from. May 13, 2016. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the record does not contain a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form). However, the Board can piece tother from the record the fact that the Veteran hade worked for 25 years as a tractor trailer driver for Food City but has not worked since 1993 because of, at least in part, his service connected disabilities. See, e.g., VA examinations dated in August 2012, February 2017, and January 2021; private psychiatric examination dated in August 2014. As to his education and training, the August 2014 private examiner also noted that he had an 11th grade education and no other training. As to the Veteran’s being able to work performing jobs that require sedentary employment for the first time and non-sedentary employment, including his past employment as a tractor trailer driver, as well as other possible employment that could make use of his work experience and 11th grade education, the Board finds that the medical records show that the problems caused by his service-connected PTSD with major depressive disorder, coronary artery disease, diabetes mellitus, right and left leg peripheral neuropathy, tinnitus, and bilateral hearing loss adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected PTSD with major depressive disorder, coronary artery disease, diabetes mellitus, right and left leg peripheral neuropathy, tinnitus, and bilateral hearing loss would make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that his service-connected PTSD with major depressive disorder, tinnitus, and bilateral hearing loss would make it very difficult for the Veteran to learn the new skills needed to work in most sedentary employments for the first time and thereafter interact with his co-workers as well as any customers and carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, and the impact his service-connected PTSD with major depressive disorder, coronary artery disease, diabetes mellitus, right and left leg peripheral neuropathy, tinnitus, and bilateral hearing loss have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment in as a tractor trailer driver, because of the problems they would cause in any work environment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.