Citation Nr: 21028277 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-17 981 DATE: May 10, 2021 ORDER From June 24, 2009, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT From June 24, 2009, the Veteran was unable to maintain substantial gainful employment due to service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, from June 24, 2009, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from May 1988 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision from the Regional Office (RO), which, in pertinent part, denied TDIU. During the pendency of the appeal for service connection for an acquired psychiatric disorder, the Veteran submitted a claim for TDIU based on all service-connected disabilities. January 2011 TDIU Claim (VA Form 21-8940). As a February 2020 rating decision granted service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and depression, effective June 24, 2009, the claim for TDIU attaches to the initial rating period for the now service-connected acquired psychiatric disorder that runs from June 24, 2009. See Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). As such, the TDIU rating period on appeal is from June 24, 2009, the effective date for service connection for the acquired psychiatric disorder. As the Veteran has a 100 percent (total) schedular rating from November 29, 2010 to February 1, 2011, a TDIU is not applicable during this period. As such, the Board will only consider TDIU for the periods from June 24, 2009 to November 29, 2010 and from February 1, 2011 to the present. In September 2019, the Board remanded TDIU as intertwined with the newly service-connected acquired psychiatric disorder for the RO to readjudicate TDIU upon assigning an initial rating for the newly service-connected acquired psychiatric disorder. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the September 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been rendered moot by the grant of TDIU for the entire rating period from June 24, 2009, which is a full grant of the benefits sought on appeal from the earliest date that is legally possible. TDIU from June 24, 2009 Disability ratings are determined by applying the criteria set forth in VA's Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In this case in January 2011 the Veteran submitted a completed TDIU form (VA Form 21-8940, Application for Increased Compensation Based on Unemployability). The Veteran represented that he had not been able to maintain (follow) substantial gainful employment due to the service-connected disabilities. The Veteran reported that he last worked full time as a supervisor in April 2009 for Kelly Service. For the rating period from June 24, 2009, the service-connected disabilities are an acquired psychiatric disorder (rated 70 percent), sleep apnea (rated 50 percent), right carpal tunnel syndrome (rated 30 percent), left carpal tunnel syndrome (rated 20 percent), right hand scar (rated 10 percent), and a left ankle disability (rated 10 percent). The service-connected disabilities meet the requirements set forth in 38 C.F.R. § 4.16(a) for consideration of TDIU for the period from June 24, 2009, as there was at least one service-connected disability rated 40 percent (PTSD rated 50 percent) with a combined disability rating of at least 70 percent during the relevant rating period. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran has been unable to maintain substantially gainful employment due to the service-connected disabilities for the period from June 24, 2009, excluding the period from November 29, 2010 to February 1, 2011when the Veteran is in receipt of a 100 percent (total) schedular rating. A review of the evidence shows that the psychiatric disorder has manifest as symptoms of severe depression, anxiety, and suicidal ideation. Treatment notes dated from 2009 through as recently June 2019 show a long history of severe psychiatric symptoms that have resulted in multiple psychiatric admissions for severe depression, panic attacks, feelings of hopelessness, psychosis, and suicidal ideation and attempts despite mental health treatment. See May 2009, July 2009, September 2009, February 2010 private treatment records; August 2009, October 2010, February 2012, October 2013, June 2019. The record shows that the Veteran was granted Social Security disability benefits from April 2009 due to severe depression. In a September 2009 report the Social Security psychiatric examiner noted the psychiatric disorder manifested as disturbance of mood, anhedonia, sleep disturbance, feelings of guilt or worthlessness, difficulty concentrating or thinking, and thoughts of suicide. SSA found moderate restrictions in activities of daily living; marked difficulties in social functioning and concentration persistence, and pace; and four or more episodes of decompensation. See September 2009 SSA records. Private physicians have also indicated that the Veteran has been unable to work since 2009 due to mental and physical disabilities. In a January 2011 letter, the Veteran's former employer noted that the Veteran resigned from his position as a manufacturing supervisor in April 2009 due to pain in both hands and the left ankle, as the position required regular use of a computer, heavy lifting, and long distance walking inside the manufacturing plant. See May 2018, November 2018 private treatment records; January 2011 correspondence; January 2011 Request for Employment Information. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that, given the Veteran's functional limitations, for the period from June 24, 2009, the combined effect of the service-connected mental and physical disabilities prevent the Veteran from performing the type of employment for which he is trained or engaging in other unskilled sedentary work that would require adapting to changes in the work environment, attention and concentration necessary to complete tasks in a normal workday, engaging with supervisors and coworkers in an appropriate manner, and regular use of the hands. Given the combined mental and physical limitations, it is likely that the service-connected disabilities would significantly impair the ability to maintain substantially gainful employment, and did so in this case from June 24, 2009. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU are met from June 24, 2009. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.