Citation Nr: 21028690 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-01 136 DATE: May 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving doubt in the Veteran's favor, the combined effect of the Veteran's service-connected disabilities renders him unable to obtain and follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to May 1967. This matter comes before the Board of Veteran's Appeals (Board) from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2017 when the claim was remanded for development. The Board finds the August 2017 remand directives have been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2020, the Veteran submitted a Higher-Level Review Request regarding his TDIU claim. In February 2020, he withdrew that request and noted he wanted to continue his appeal. In February 2021, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing will be associated with the record. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran asserts that a TDIU is warranted because his service-connected disabilities preclude him from obtaining and following substantially gainful employment. A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16 (a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16 (a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead 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. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran's ability or inability to engage in substantial gainful activity, must be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). 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, 363 (1993). "Substantially gainful" employment is employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the occupation in the community where the veteran resides. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16 (a); see also Moore, 1 Vet. App. at 358 ("The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment."). In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b). The Veteran presented a claim for TDIU in January 25, 2010. See statement in Support of Claim of January 25, 2010. At the time he presented this claim for a TDIU, he had a pending appeal regarding increased ratings for his service-connected disabilities of posttraumatic stress disorder (PTSD) and vertigo. The claim of increased rating for PTSD and vertigo was received by VA in July 8, 2009. He also had a pending appeal regarding the initial rating assigned to his hearing loss in the August 2007 rating decision. However, he withdrew the appeal as to the initial evaluation assigned to his hearing loss in February 2011. See Statement in Support of Claim for February 2011. Thus, although the claim for TDIU was received in January 2010, the Veteran had pending appeals as to the rating of his PTSD and vertigo, which are some of the conditions the Veteran asserts render him unable follow substantial gainful employment. Accordingly, the Board finds that the claim of TDIU was raised in relation to these increased rating claims and is part and parcel of those claims for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the appeal period before the Board is from July 8, 2009, the date the Veteran's claim for increased rating was received, forward. As the appeal regarding the rating of the Veteran's hearing loss was withdrawn, the Board is unable to find that the appeal period, for the TDIU, extends prior to July 8, 2009. The Veteran is currently service connected for posttraumatic stress disorder (PTSD), disequilibrium, headaches, tinnitus, and bilateral hearing loss. His combined evaluation is 80 percent from July 8, 2009 and at least one disability has been rated at 40 percent or more throughout the appeal period. Thus, the Veteran has met the schedular criteria for TDIU consideration throughout the appeal period. Now, the question that remains before the Board is whether the Veteran's service-connected disabilities render him unable to obtain and follow substantially gainful employment. Resolving doubt in the Veteran's favor, the Board finds that a TDIU is warranted. The Veteran's medical records have been associated with the claims file. In a November 2009 VA examination for the Veteran's PTSD, the Veteran was noted to have some interference in performing activities of daily living because of his desire to stay away from people and isolate. He was also noted to have difficulty establishing and maintaining effective work and social relationships because of his isolation, depressed mood and mistrust of people. See VA examination of November 2009. In March 2011, the Veteran was examined by VA for his headaches. The Veteran reported headaches with an intensity of 6-8 out of a 10-point scale, with no associated symptoms, a duration of 2 to 3 hours, and a frequency of at least 1 per week. The Veteran also reported that his headaches reduced his work efficiency and that he was unable to maintain ordinary activities of life while experiencing a severe headache. The Veteran also reported that severe headaches were as frequent as 2 times per month. See VA examination for headaches dated March 2011. In a May 2012 addendum opinion, a medical examiner opined that while the Veteran's hearing loss would cause mild communication difficulties without the use of hearing aid; that his hearing loss did not render him unable to secure and maintain substantially gainful physical or sedentary employment. See May 2012 addendum opinion. In August 2013, the Veteran submitted a statement where he detailed how his service-connected disabilities affect his everyday life and his ability to work. Regarding his PTSD, he explained that he had to leave his work because whenever he encountered challenges, his reaction would be anger, frustration and exasperation, which were reactions related to his PTSD. In terms of vertigo, he explained that he would become dizzy when arising from a sitting position or turning quickly, which caused issues in his prior job environment where he would work around machinery and rotating equipment, where safety is important. His hearing loss affected his communication and interpersonal relationships as he would misunderstand often. In terms of his tinnitus, he noted it got in the way of hearing and caused distraction and frustration. In terms of headaches, he noted they happened with a frequency of 1 to 3 times per week, and that they are often times so severe that require medication and rest. He also noted that this caused issues with his concentration and drained his energy. See statement of August 2013. The Board finds this statement credible and assigns it high probative value. In January 2015, the Veteran submitted a medical opinion by a private physician who noted that the Veteran had been unable to work for many years and opined, after reviewing and analyzing the Veteran's conditions, that the Veteran's PTSD and physical impairments of vertigo, hearing loss, shoulder injury and cervical spine injury rendered the Veteran unemployable. See private medical opinion of January 2015. The Board notes the Veteran is not currently service connected for a cervical spine condition nor for a shoulder condition. Thus, as the physician took into consideration other non-service-connected disabilities when rendering the opinion on the Veteran's employability, the Board is unable to afford it probative value. In May 2016, the Veteran was administered a Headache Disability Benefits Questionnaire (Headache DBQ) where he was noted to suffer from prostrating attacks once every month and the Veteran's report of functional impairment, characterized as reduced work efficiency and quality, was noted. See Headache DBQ of May 2016. In September 2019, a medical opinion was associated with the claims file, where a psychologist opined that the Veteran's PTSD symptomatology did not preclude him from working. In favor of this opinion, the examiner noted that the Veteran had worked almost 2 decades at the same job. The examiner further noted that the Veteran's primary impairment related to occupation functioning is his difficulty interacting with others and avoiding getting angry during stressful situation. See medical opinion of September 2019. In a Review PTSD Disability Benefits Questionnaire (PTSD DBQ), dated February 2020, the Veteran was noted to have occupational and social impairment with reduced reliability and productivity due to his PTSD. Relevant to the present claim, the examiner noted that the Veteran is easily frustrated, attention and concentration are poor, and that he gets disoriented to time. Regarding symptomatology, among other things, the examiner noted that the Veteran has impairment of short- and long-term memory, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. See PTSD DBQ of February 2020. In a Hearing Loss Disability Benefits Questionnaire, dated February 2020, the Veteran's hearing loss was noted to impact his ordinary conditions of daily life, including his ability to work, as the Veteran reported that it is really difficult for him to understand people who do not speak clearly and that he needs to ask them to repeat themselves. See Hearing Loss DBQ of February 2020. In February 2021, the Veteran's private counselor subscribed a medical opinion where he noted that the Veteran continues to struggle with Chronic PTSD symptomatology, to include recent memory deficits, irritability and difficulty coping with anger dysfunction, which negatively impact the Veteran's ability to effectively manage his PTSD and consistently function successfully in the work place. See medical opinion by Counselor G.D.C., dated February 2021. The Board finds this opinion adequate and assigns it high probative value. Thus, based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude him from obtaining and following substantially gainful employment. To this regard, the Board notes that while each disability considered on its own may not result in his unemployability, the combined effect of all of the Veteran's service-connected disabilities do render him unable to obtain and follow substantially gainful employment. The Board notes the Veteran worked as an engineer in a technical field. Such a position, inherently, would necessitate the Veteran to be able to communicate effectively, to manage challenges in an appropriate manner, and to complete his work in an efficient way. The Veteran has provided lay statements where he explained that his PTSD symptomatology would get in the way of managing challenges in an appropriate manner as he explained that he would often react to challenges with anger, frustration and exasperation. He also explained that his hearing loss would get in the way of communicating effectively as he would need to request repetition, which would sometimes be taken the wrong way and create conflict with the people around him. Further, the Veteran also explained how his headaches would affect his work efficiency and quality, and his vertigo could affect his safety in a work environment with heavy machinery. Further, the Veteran's private physician has provided a private medical opinion where he noted that the Veteran's PTSD symptomatology negatively impacted his ability to function successfully in a work environment. Further, the Veteran provided credible testimony before the undersigned in February 2021, in favor of his TDIU claim. Thus, resolving doubt in the Veteran's favor, the Board finds that the combined effect of the Veteran's service-connected disabilities of PTSD, headaches, hearing loss and vertigo, render him unable to obtain and follow substantially gainful employment. Thus, entitlement to a TDIU is warranted, throughout the appeal period. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.