Citation Nr: 21025596 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 12-27 681 DATE: April 29, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to 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 in the United States Army from August 1974 to May 1976. This appeal was previously remanded by the Board in November 2019 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Also in November 2019, the Board remanded an appeal seeking service connection for an acquired psychiatric disability. Service connection for such a disability was awarded in an October 2020 rating decision. As this constitutes a complete grant of the service connection claim, this matter is no longer for the Board’s consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). In November 2019, the Board also issued a separate decision under docket number 12-27 018A. In pertinent part, this decision denied service connection for bilateral hearing loss and an increased rating for bronchial asthma. However, these determinations were vacated by the Court of Appeals for Veterans Claims (Court) in December 2020 and remanded for further development. The matters have not yet been returned to the Board, such that they will be addressed in a later Board decision under their assigned docket number, should such action be required. TDIU Generally, VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, the central inquiry in a TDIU claim 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). A total disability rating for compensation may be assigned when a veteran receives less than a total disability rating (i.e., less than a 100 percent combined disability rating) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. Here, the Veteran has met the preliminary schedular criteria for a TDIU since October 6, 2010, when he was service-connected as follows: (1) Psychiatric disability (50 percent); (2) bronchial asthma (30 percent); (3) duodenal ulcer disease (20 percent); (4) umbilical herniorrhaphy (noncompensable); (5) healed scar (noncompensable). Taken in combination, these disabilities were evaluated as 70 percent disabling, such that the schedular criteria have been met since October 6, 2010. 38 C.F.R. § 4.16(a). Thus, entitlement may be awarded upon a finding that the Veteran’s service-connected disabilities have precluded his substantial and gainful employment since that time. On this point, the record reflects that the Veteran has a partial college education, absent additional education or training. From approximately August 1984 until his retirement, he was employed by the United States Postal Service (USPS) as a letter carrier. According to the Veteran, his service-connected disabilities rendered him unable to work beyond that time. See November 2012 VA Form 21-8940. Of note, the Veteran’s former employer has not completed VA Form 21-4192 at any time, or otherwise offered any statement or evidence regarding the termination of the Veteran’s employment, including the cause therefor. Rather, the Veteran’s occupational capacity was assessed by an April 2021 private vocational expert, who conducted a personal interview of the Veteran and reviewed his VA claims file. In rendering his opinion, the expert limited his consideration to the impact of the Veteran’s service-connected psychiatric and asthma disabilities on his occupational functioning. In so doing, the expert concluded that it was at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, in any occupation and regardless of skill or exertional level, since at least 2015. The vocational expert offered an 11-paged assessment in support of his opinion. With respect to the Veteran’s psychiatric disability, symptoms such as social isolation, mood disturbances, panic attacks, memory impairment, and anxiety were recorded. These symptoms led to decreased motivation and the intermittent inability to conduct the activities of daily living. With respect to the Veteran’s asthma, symptoms including shortness of breath, fatigue, dizziness, and lightheadedness were reported with even minimal physical exertion. As a result, he experienced restrictions with walking/standing, lifting/carrying, kneeling/stooping/bending, and climbing. Given his combined disability picture, the Veteran demonstrated “marked difficulty” with the activities of daily living including dressing, bathing, grocery shopping, or driving. In considering the Veteran’s background, the expert clarified that his reported partial college education actually referred to his receipt of an Associate’s Degree in accounting; however, the Veteran had never been employed in this field. Rather, he remained employed by the USPS until approximately July 2015, with duties which included organizing and sorting mail, driving a USPS truck, and delivering mail within the community. Towards the conclusion of the Veteran’s employment, he experienced “severe limitations” in his ability to complete these tasks. As a result, he often required assistance from his coworkers to complete his daily mail deliveries and required frequent breaks to accommodate his respiratory symptoms. Per the Veteran’s recollections, he was absent from work for approximately 50 to 60 days during his last year of employment. Upon such a disability picture, the vocational expert concluded that the Veteran was unable to secure and follow substantially gainful employment, including sedentary work, since approximately July 2015. In the accompanying rationale, the expert considered the requirements of sedentary employment; the expectations of employers in the competitive labor market; and the Veteran’s symptoms and related limitations, as follows: Specifically, as evidenced by the record, the [V]eteran’s symptoms and limitations from his service-connected PTSD and asthma include but are not limited to: difficulty maintaining appropriate social behavior; difficulty interacting with coworkers, peers, and the general public; memory impairment; significant limitations with maintaining concentration, focus, and pace due to racing and intrusive thoughts, anxiety, poor quality of sleep with daytime fatigue, depressed mood, crying spells, suicidal ideation, an overall lack of motivation, in addition to shortness of breath and fatigue with minimal physical exertion and limitations with standing, walking, lifting, and carrying. See April 2021 private assessment, pg. 5. As such, there was no field of employment—sedentary or otherwise—which could accommodate the Veteran’s physical and mental symptoms. The vocational expert also provided a detailed overview of the Veteran’s previous VA examinations, wherein various levels of occupational impairment were typically noted, although no definitive opinions of unemployability were rendered. Generally, these VA examinations corroborated the expert’s reporting as to the nature and severity of the Veteran’s symptoms and at least some related degree of occupational impairment. Insofar as an October 2015 VA examiner reported no impact of the Veteran’s asthma on his ability to work, the April 2021 expert “respectfully disagree[d],” noting that the Veteran’s symptoms precluded employment at even the “unskilled sedentary exertional level.” See April 2021 private assessment, pg. 10. Upon the above, the expert concluded that the Veteran was unemployable “in any occupation regardless of skill or exertional level” due to his service-connected psychiatric and asthma disabilities, whether considered independently or in combination. Id. at pg. 11. This opinion is highly probative evidence in support of the appeal. Notably, the vocational expert conducted an interview of the Veteran and reviewed all pertinent evidence in the claims file; offered a detailed analysis as to the nature and severity of his symptoms and their impact on his prior employment; and considered the likelihood that the Veteran could secure and follow even unskilled, sedentary employment given his current conditions. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). There is no indication that the expert misstated or misrepresented any facts in providing his opinion, which is instead supported by an accurate and detailed rationale. In contrast, the Veteran has undergone multiple VA examinations during the period on appeal which note varying degrees of impairment due to his disabilities, but decline to classify the Veteran as unemployable as a result thereof. See, e.g., VA examinations dated February 2015 (respiratory); October 2015 (psychiatric); October 2015 (respiratory); January 2016 (stomach); January 2016 (hernias); January 2016 (psychiatric); October 2018 (psychiatric); and July 2020 (psychiatric). Instead, these examiners acknowledge the Veteran’s symptomatology but conclude that he experiences no or moderate occupational impairment as a result thereof. However, these examinations are afforded less probative value than the April 2021 private assessment. Critically, the VA examiners assessed only the nature and severity of the Veteran’s isolated symptoms, rather that his disability picture as a whole. The VA evaluations also fail to account for the Veteran’s testimony regarding the impact of his disabilities on his occupational functioning, despite his competent and credible reporting throughout the period on appeal. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). Compellingly, the VA opinions are also offered by physicians who are trained to assess physical conditions and symptoms, whereas the April 2021 assessment is offered by a Certified Rehabilitation Counselor with the technical training and expertise to synthesize this information to assess the Veteran’s overall occupational capacity. Upon the weight of the April 2021 opinion, it is found that the Veteran’s service-connected disabilities preclude him from substantial and gainful employment. Notably, his asthma prevents the Veteran from even minimal physical exertion, and his psychiatric disability precludes his ability to concentrate or collaborate with others. Although the Veteran has training in accounting, he has never worked in this field and no longer possesses the capacity to do so, given his restrictions. In affording the Veteran the benefit of the doubt, the Board finds that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation and entitlement to a TDIU is hereby granted. Briefly, the Board notes that the Veteran’s November 2012 application for benefits lists August 4, 2010, as his last date of employment. However, the subsequent evidence identifies a July 2015 termination date. See, e.g., April 2021 private assessment; April 2021 representative’s statement. Ultimately, the Board declines at this point to assign an effective date for the Veteran’s TDIU; that task is best left to the RO (which can perform any needed development prior to such an assignment), as this also preserves the Veteran’s ability to appeal that effective date if there is any disagreement. [CONTINUED ON NEXT PAGE] Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.