Citation Nr: 21028171 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-01 936 DATE: May 10, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 27, 2015, is granted. FINDING OF FACT The Veteran's service-connected disabilities rendered him unable to obtain or maintain a substantially gainful occupation prior to November 27, 2015. CONCLUSION OF LAW The criteria for a TDIU prior to November 27, 2015 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to October 1969, to include service in the Republic of Vietnam. His awards and decorations include multiple Purple Hearts and a Combat Action Ribbon, among others. The Veteran died in January 2019, and the appellant is his surviving daughter and has been properly substituted into the appeal. This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16 (a). The central inquiry is whether the veteran's service-connected disabilities alone were of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A claim for TDIU is because of subjective factors that the objective rating does not consider. Vittese v. Brown, 7 Vet. App. 31 (1994). The Veteran was assigned a 100 percent schedular rating starting in November 27, 27, 2015, and continued until his death in January 2019. Because the Veteran's combined service-connection rating is evaluated at 80 percent prior to November 27, 2015 and he has one disability which is rated at 40 percent or more, he meets the requirements for a TDIU on a schedular rating under 38 C.F.R. § 4.16 (a). Prior to November 27, 2015, the service-connected disabilities included posttraumatic stress disorder (PTSD), diabetes mellitus with erectile dysfunction, residuals of shell fragment wound, right deltoid muscle, peripheral neuropathy, bilateral lower extremities, bilateral cataracts and bilateral primary open angle glaucoma and residual scars. The next inquiry is whether the Veteran's service-connected disabilities were severe enough to render him unable to secure or follow a substantially gainful occupation. Any nonservice-connected disabilities cannot be considered in this analysis. The Veteran's employment history, his educational and vocational attainment, and his particular physical disabilities are to be considered in making a determination on unemployability. To that end, the Veteran has reported on a VA Form 21-8940 that he completed four years of high school, no additional training or education, and that he last worked in 1992 at Bekeart Steel and Wire. He did not identify which service-connected disabilities impacted his ability to work. However, the Veteran reported that he was unable to secure gainful employment because he could not walk, run or stand for long periods of time, his balance was unstable, and he constantly faced the risk of falling on a February 2012 notice of disagreement. Further, on an April 2015 statement in support of claim, the Veteran reported that his service-connected PTSD effected his ability to work. He noted that experienced nightmares and could not sleep, concentrate, or work. As to bilateral cataracts and bilateral primary open angle glaucoma, the October 2009 VA examiner found that the Veteran's bilateral cataracts and bilateral primary open angle glaucoma did not impact his usual occupation. The Veteran underwent a November 2010 VA contract examination for bilateral cataracts and bilateral primary open angle glaucoma. However, no opinion was made as to how this disability affected his unemployment. Regarding PTSD, on a March 2010 VA contract examination, the Veteran reported that he worked as a welder for 23 years, his relationship with his supervisor was poor and his relationship with his coworkers was fair. Additionally, he noted that he also cleaned cars for 4 years and described his relationships with his supervisors and coworkers as poor. The examiner indicated that the Veteran had discord with his coworkers during his employment. Upon examination, the examiner opined that the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. The examiner found that the effect of the Veteran's PTSD symptoms on his employment and overall quality of life included limited social interaction and history of discord with coworkers. Next, on a November 2010 VA PTSD contract examination, the examiner separated a diagnosis of cognitive disorder and PTSD and stated that they were separate diagnosis and delineated symptoms and cause of TDIU. The examiner opined that the Veteran's PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermitted ability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation. The examiner found that the effects of the Veteran's PTSD symptoms on his employment included problems with everyday living functioning because of his PTSD symptoms. As to diabetes mellitus with erectile dysfunction, and shell fragment wound of the right deltoid muscle, on a November 2010 VA contract examination, the Veteran indicated that he was not able to keep up with his normal work requirements and he unable to walk for any distance or do any lifting. Regarding the functional impairment caused by the Veteran's service-connected disabilities on his ability to perform physical and sedentary activities of employment, the examiner indicated that the functional impairment resulted in fatigue with exertion and right shoulder weakness. The examiner further found that the effect of the Veteran's service-connected diabetes mellitus with erectile dysfunction, and shell fragment wound of the right deltoid muscle disabilities on his occupation were fatigue, shortness of breath with exertion and limited exercise tolerance. Next, in a series of July 2015 VA examinations for diabetes mellitus, erectile dysfunction, and peripheral neuropathy, examiners opined that the Veteran's diabetes mellitus, erectile dysfunction and peripheral neuropathy of the bilateral lower extremities did not have a functional impact on his ability to work. The evidence does not show that the Veteran's service-connected scar would have prevented him from working prior to November 27, 2015. A review of treatment notes does not reflect more severe occupational impairment due to PTSD, diabetes mellitus with erectile dysfunction, residuals of shell fragment wound, right deltoid muscle, peripheral neuropathy, bilateral lower extremities, bilateral cataracts and bilateral primary open angle glaucoma and residual scars. The record also suggests that the Veteran is in receipt of Social Security Administration (SSA) benefits but that the SSA medical records were destroyed. In August 2013, the RO requested the SSA disability records. In September 2013, SSA responded that the records had been destroyed. In May 2014, the RO notified the Veteran that his SSA records could not be located and requested that he submit any relevant documents in his possession. That same month, the Veteran responded that he did not have any other records to submit pertaining to his SSA disability records. Having reviewed the record, the Board concludes that it is reasonably certain that the SSA records no longer exist and further efforts to attempt to obtain them would be futile. See 38 C.F.R. § 3.159(c) and (e). Further, while findings from SSA would constitute probative evidence with respect to a TDIU claim, they are not dispositive or binding on VA. SSA's legal criteria for assessing disability for SSA benefits purposes differs in important respects from VA's own framework for determining entitlement to TDIU. Specifically, SSA bases disability on a claimant's residual functional capacity, and whether there is substantial gainful activity that could be performed with that residual functional capacity. A VA claim for a TDIU focuses on unemployability based on impairments caused only by service-connected disabilities. Also, unlike SSA, VA does not consider age in making its determination. When looking at the disability picture as a whole, and after resolving all doubt in his favor, the Board finds the evidence supports a finding that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation prior to November 27, 2015. Although his diabetes mellitus with erectile dysfunction, bilateral lower extremity peripheral neuropathy, bilateral cataracts and bilateral primary open angle glaucoma and residual scars were not found to affect his ability to work, the preponderance of the evidence shows that his service-connected disabilities, such as PTSD, diabetes mellitus with erectile dysfunction, and residuals of shell fragment wound, right deltoid muscle, affected his ability to work. Specifically, regarding his ability to perform physical and sedentary activities of employment, the November 2010 VA contract examiner indicated that the functional impairment resulted in fatigue with exertion and right shoulder weakness. Additionally, the examiner found that the effect of the Veteran's service-connected diabetes mellitus with erectile dysfunction, and shell fragment wound of the right deltoid muscle disabilities on his occupation were fatigue, shortness of breath with exertion and limited exercise tolerance. Further, both the March 2010 and November 2010 VA contract examiners found that the Veteran's PTSD symptoms affected his ability to work. The March 2010 VA examiner found that the effect of the Veteran's PTSD symptoms on his employment and overall quality of life included limited social interaction and history of discord with coworkers. The November 2010 VA examiner found that the effects of the Veteran's PTSD symptoms on his employment included problems with everyday living functioning because of his PTSD symptoms. As the evidence showed that prior to November 27, 2015, he was unable to obtain or maintain substantially gainful employment, the appeal is granted. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.