Citation Nr: 21025070 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-41 953 DATE: April 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, there is probative medical evidence that indicate that his service-connected disabilities, including PTSD, render him unable to secure and follow a substantially gainful occupation consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to September 1972. This matter stems from a May 2014 rating decision and comes before the Board of Veterans’ Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in its May 2019 remand, the Board found that the issue of entitlement to a TDIU was raised by the record, and remanded the matter to the agency of original jurisdiction (AOJ) to provide the Veteran an opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Although the AOJ sent the Veteran a duty to assist letter in June 2019 requesting that he complete and return a VA Form 21-8940, the Veteran did not respond to the AOJ’s letter. Despite the Veteran’s failure to provide the requested VA Form 21-8940, the issue of entitlement to a TDIU remains in appellate status. However, the AOJ did not address the issue of entitlement to a TDIU in the January 2021 Supplemental Statement of the Case (SSOC). Thus, the Board remanded the matter again in a March 2021 decision for an initial review of the evidence of record and an SSOC for the issue of entitlement to a TDIU. See 38 C.F.R. § 19.31. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). TDIU A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Employment may be marginal even when the veteran’s earned income exceeds the poverty threshold if the veteran is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where a veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the remaining question is whether the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. TDIU The Veteran generally asserts that he is entitled to a TDIU rating for his service-connected disabilities. After reviewing all of the evidence of record, the Board affords the Veteran the benefit of the doubt and finds that he is prevented from maintaining gainful employment due to his service-connected disabilities, including PTSD. Regarding the period on appeal, this issue was raised by the record in conjunction with the Veteran’s claims for an increased initial ratings for PTSD and nephropathy and an increased rating for diabetes mellitus. These claims were submitted on December 4, 2013, and this is the period encompassed by the current appeal. The Veteran’s service-connected disabilities include nephropathy evaluated as 80 percent disabling; sleep apnea evaluated as 50 percent disabling, posttraumatic stress disorder (PTSD) evaluated as 50 percent disabling; right upper extremity neuropathy evaluated as 20 percent disabling; left upper extremity associated neuropathy evaluated as 20 percent disabling; diabetes mellitus evaluated as 20 percent disabling; right lower extremity neuropathy evaluated as 10 percent disabling; left lower extremity neuropathy evaluated as 10 percent disabling; and headaches evaluated at 0 percent disabling. For the entire appeal period, December 4, 2013 to the present, his combined rating has been 100 percent. As such, the Veteran meets the scheduler criteria for TDIU under 38 C.F.R. § 4.16(a). While the Veteran does already have a 100 percent evaluation, the United States Court of Appeals for Veteran’s Claims held in Bradley v. Peake, 22 Vet. App. 280 that there could be a situation where a veteran has a schedular total rating for a service-connected disability, and could establish a TDIU for another service-connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114(s) by having an “additional” disability of 60 percent or more. Here, there is evidence that the Veteran’s psychiatric disorder, alone, could prevent the Veteran from maintaining employment, and he has numerous additional service-connected disabilities. The Board therefore finds that the issue of entitlement to a TDIU is not moot in this case. As the Veteran has satisfied the schedular requirements for TDIU, the question that remains is whether his service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. 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). Affording the Veteran the benefit of the doubt, the Board finds that entitlement to a TDIU is warranted. The Board notes that with respect to the Veteran’s education and training, the file includes several notations indicating that the Veteran completed two years of college. See C & P Examination for PTSD dated August 2019; see also Miscellaneous Disability Benefits Questionnaire dated August 2019. The Veteran was afforded a VA examination for PTSD in September 2011. The examiner noted that the Veteran experiences occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner discussed the Veteran’s employment history, including that he attended college for two years (part-time) and majored in Criminal Justice. Additionally, it is noted that although the Veteran did not obtain an Associate Degree, he did well. Furthermore, it is noted that the Veteran worked for the Charleston Sheriff’s department for 10 years, then as an Investigator for a school district for five years, and then completed his career with 20 years of service at the Naval Weapons Station. See Appellate Brief Received November 2018. A Disability Benefits Questionnaire Examination received in March 2014 for the Veteran’s claimed hearing loss and tinnitus disabilities provides information regarding the Veteran’s work history. From 1972 to 2007 the records state that the Veteran was a police officer and he retired from that job in 2007. See C & P Examination received March 2014. Dr. H. H-G. (private examiner) provided a February 2015 Disability Benefits Questionnaire which assessed the Veteran’s mental health. She diagnosed the Veteran with major depressive disorder and indicated that the Veteran has occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and mood. H-G. also noted that upon the mental status examination interview, the Veteran’s attention was normal, and his concentration was variable. Additionally, H.-G. stated that the Veteran reported increased trouble with short-term memory. It was noted that the Veteran’s speech flow was normal, his thought content was stated to be appropriate, organization of thought was characterized as goal directed, his knowledge was noted to be average, his intellectual abilities, his capacity for abstraction, his ability to interpret proverbs, and his judgment were all noted to be average. She further noted that the Veteran’s mood was anxious and nervous, and his affect was restricted. A detailed private medical opinion assessing the Veteran’s mental health disorder was provided by H.-G. in September 2018. She wrote that the Veteran cannot sustain the stress from a competitive work environment and cannot be expected to engage in gainful activity due to his major depressive disorder. She discussed the Veteran’s symptoms which impaired his ability to function affectively, including depression, guilt, anxiety, mild memory loss, and suicidal ideation. She also noted that the Veteran had additional physical problems, such as nephropathy, which caused increased depression, and that this disabilities caused a holistic effect which rendered the Veteran incapacitated. See Appellate Brief Received November 2018. The Board accepts that this medical opinion is based on an accurate understanding of the Veteran’s medical history and contentions, it is consistent with the other medical evidence of record, and the psychologist provided adequate discussion and rationale for her findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation). It is therefore afforded great probative weight in deciding the claim. While the August 2019 VA examiner found that the Veteran’s psychiatric symptoms would only cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, this medical opinion is at least evenly weighted with the September 2018 private opinion. The evidence is therefore in equipoise regarding whether the Veteran’s service-connected disabilities, and specifically his psychiatric disorder, prevent him from being able to maintain any gainful employment consistent with his educational and work experience. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ ..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Entitlement to a TDIU is granted. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.