Citation Nr: 21027945 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 190412-11747 DATE: May 7, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to May 10, 2018, is granted. FINDING OF FACT Prior to May 10, 2018, the Veteran's service-connected disabilities precluded him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW Prior to May 10, 2018, the criteria for a TDIU due to service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to June 1987, and from August 1988 to November 1991. The Veteran has a 100 percent combined schedular VA disability rating, based on posttraumatic stress disorder (PTSD), from May 10, 2018. Also, he has been awarded special monthly compensation under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) on account of PTSD rated 100 percent and additional service-connected disabilities of right foot residuals of frostbite and left foot residuals of frostbite, independently, ratable at 60 percent or more from May 10, 2018. A rating decision was issued under the legacy system in July 2017. In September 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in November 2018, which is the decision on appeal. In the April 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in, as well as any evidence submitted by the Veteran and his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. In a March 2020 Board decision, the Board dismissed the Veteran's claim for entitlement to a TDIU due to service-connected disabilities. Subsequently, in March 2020 and May 2020, the Veteran's representative requested Board reconsideration of the decision. See 38 C.F.R. § 20.1001. Reconsideration of a Board decision may be accorded at any time based upon allegation of obvious error of fact or law, or allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant. Id. In January 2021, the Board issued an Order of Reconsideration of the March 2020 Board decision, on the issue of entitlement to a TDIU due to service-connected disabilities, by an expanded panel of the Board. See 38 U.S.C. § 7103(b). The appeal has now been assigned to this three-member reconsideration panel. See 38 C.F.R. § 20.1004. Entitlement to a TDIU due to service-connected disabilities, prior to May 10, 2018. The Veteran, and his representative, contends that prior to May 10, 2018, his PTSD prevented him from securing or following substantially gainful employment. See Third Party Correspondence (March 2020). The November 2018 rating decision found that medical evidence notes the Veteran's PTSD and bilateral foot disability as affecting his ability to secure or follow a substantially gainful occupation. This is a favorable finding by the AOJ. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The Board concludes that, prior to May 10, 2018, the Veteran met the schedular requirements for schedular TDIU under 38 C.F.R. § 4.16(a) and the evidence, prior to that date, supports the finding that he was unable to secure or follow substantially gainful employment due to service-connected disabilities alone. Therefore, resolving all doubt in favor of the Veteran, the claim is granted. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. In this case, prior to May 10, 2018, the Veteran met the numeric standard for consideration of entitlement to schedular TDIU under 38 C.F.R. § 4.16(a). He had been service-connected for PTSD (70 percent disabling); right foot residuals of frostbite (30 percent disabling); and left foot residuals of frostbite (30 percent disabling). His combined rating, from February 23, 2017, to May 10, 2018, was 90 percent. Thus, prior to May 10, 2018, the Veteran met the schedular requirements for a TDIU. The Veteran filed his TDIU claim in May 2017, indicating that he last worked in April 2017 when he became too disabled to work; he had last worked as a letter carrier for the United States Postal Service; he completed four years of high school education and zero years of college education. He listed his PTSD as precluding his ability to work, and also noted that he had been in a doctor's care and/or hospitalized in the past 12 months. See VA Form 21-8940 (May 2017). VA examination report, dated in January 2017, reflects that the Veteran's level of occupational and social impairment, with regards to his PTSD symptoms, more closely approximated: Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted, among other things, that the Veteran seemed frail, wanted to cry throughout the session, and that he was happy that his wife sent him to VA. VA examination report, dated in July 2017, reflects that the Veteran's level of occupational and social impairment, with regards to his PTSD symptoms, more closely approximated: Occupational and social impairment with reduced reliability and productivity. The examiner noted depressed mood and anxiety as factors that would negatively impact work efficiency and performance. The report additionally reveals that symptoms associated with the Veteran's PTSD would more likely cause him to make errors at work and to perform at a slower pace. Further, the report shows that (1) suspiciousness and panic will likely interfere with peer relationships, and that the Veteran will have a difficult time trusting them; (2) disturbances of motivation and mood will result in poor reliability and periods of inability to work; (3) difficulty handling stressful situations will exacerbate anxiety and increase the likelihood of panic attacks, which will then decrease reliability, performance, and work efficiency; and (4) absenteeism will likely increase under periods of stress. VA examination report, dated in October 2017, reflects that the Veteran's level of occupational and social impairment, with regards to his PTSD symptoms, more closely approximated: Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The report of examination notes that the Veteran had, among other symptoms, impairment of short- and long-term memory as attributed to his acquired psychiatric disorder. In the remarks, the examiner noted that throughout the examination, the Veteran demonstrated significant memory loss, and his memory loss made it difficult to assess for symptoms. VA examination report, dated in May 2018, reflects that the Veteran's level of occupational and social impairment, with regards to his PTSD symptoms, more closely approximated: Occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran's PTSD had progressed and now included a diagnosis of major depressive disorder (MDD). In this regard, the examiner observed that the Veteran's low mood was sufficient to meet criteria for MDD and is on medication focused on depression. Private examination report, dated in May 2018, reflects that the Veteran's level of occupational and social impairment, with regards to his PTSD symptoms, more closely approximated: Total occupational and social impairment. The report notes the Veteran's unemployability and that he stopped working primarily due to his service-connected PTSD. Following examination, the examiner concluded that the Veteran's PTSD symptoms did "not show material improvement, but rather have become chronic," and, thus, his "PTSD, anxiety, and depression are permanent in nature and will continue as a serious problem for the remainder of his life." With regard to the Veteran's bilateral foot disability, VA examination reports, dated in December 2016 and October 2017, reveal that his disabilities did not impact his ability to work. However, VA examination report, dated in June 2018, reflects functional impairment. In this regard, the examiner noted an impact on work as a limitation in working in cold environments or exposure to the cold. Next, the record reveals multiple private medical opinions, from various medical professionals, to include VA medical professionals, opining on the Veteran's ability to secure or follow substantially gainful employment due to service-connected disabilities. See, e.g., CAPRI (October 2017) & Third Party Correspondence (October 2017). Collectively, the opinions demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD and bilateral foot disability. In reaching this conclusion, the opinions note an interview, a review of pertinent records, and physical examination. For instance, private medical opinion, dated in March 2019, reveals that the Veteran was interviewed in February 2019, in which, he described his service-connected disabilities and their impact on his ability to seek and/or sustain employment. Likewise, private medical opinion, dated in April 2018, reveals that after examination and review of records, the examiner concluded that the Veteran's PTSD and bilateral foot disability precluded him from securing or following a substantially gainful occupation. Lastly, the lay evidence of record shows functional impairment due to service-connected disabilities. For instance, lay statement, dated in May 2017, reveals that the Veteran reported that he was unable to seek or keep employment because he could not "meet the requirements of a job." In elaborating, he stated that his "anxiety and physical limits are already reached," and his "PTSD will not allow [him] to [be] around people." See VA Form 21-4138 (May 2017). The evidence, as described and discussed above, clearly shows that, prior to May 10, 2018, the Veteran was not able to obtain or maintain the type of employment consistent with his education and work history due to the combined effects of his service-connected disabilities. In this regard, the Board finds the clinical findings detailed by the private and VA examiners to be highly probative as they considered the full evidence of record and clearly articulated how the Veteran's service-connected disabilities impacted his ability to work. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Similarly, the lay reports of the Veteran as to the nature of his service-connected disabilities and their resulting functional impairment are competent and credible. See Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, his work history is primarily as a corrections officer, security guard, manufacturer employee (including duties of a supervisor), and then as a letter carrier, which all require such activities as walking, standing, sitting, bending, and interaction with others. The September 2017 private medical opinion reveals that the Veteran is unable to "work physically or sedentary due to chronic depression with low energy level and motivation, chronic fatigue, concentration and memory lapses, inability to interact effectively with others, including public, coworkers and supervisors." Additionally, the June 2018 VA examination report noted that the Veteran's bilateral foot disability limited his ability to work in cold environments. VA and private examination reports on the Veteran's acquired psychiatric disorder also show that he has endorsed and reported symptoms of avoidant behavior, intrusive thought, restrictions of affect, poor social interactions, and memory problems, to include short- and long-term. This has, among other things, reduced his ability to work collaboratively and effectively with others. In addition to the above, medical and lay evidence also suggests that the Veteran has difficulty adjusting to stressful situations and that he has abridged motivation that reduces the efficiency in which he is able to engage in the physical and sedentary activities of employment. Lastly, as noted above, the AOJ in the November 2018 decision on appeal found that medical evidence notes the Veteran's PTSD and bilateral foot disability as affecting his ability to secure or follow a substantially gainful occupation; the Board is bound by this favorable finding absent clear and unmistakable error, which is not demonstrated here. 38 C.F.R. § 3.104(c). Consequently, in light of the Veteran's education level, his history of performing only work involving physical activities such as standing and walking, and the nature of the limitations of his service-connected disabilities, the Board resolves all doubt in his favor and finds that, prior to May 10, 2018, such service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Therefore, a TDIU is warranted. PAUL SORISIO Veterans Law Judge Board of Veterans' Appeals TANYA SMITH Veterans Law Judge Board of Veterans' Appeals C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.