Citation Nr: 21029376 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-41 481 DATE: May 13, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment for at least some portion of the relevant period. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.1, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2019, the Veteran testified at a Board video conference before a Veterans Law Judge (VLJ). The Veteran was notified in March 2021 that the VLJ who presided at the hearing had retired from the Board. He was informed that he may request an additional hearing with a new VLJ who would ultimately decide his appeal by sending a response within 30 days of the notice. The Veteran did not request a new hearing. Therefore, the Board will proceed with his appeal based on the current evidence of record. The Board remanded this issue in November 2020 to provide the Veteran an opportunity to complete and submit evidence of personal income since 2012 and the readjudication of the Veteran's claim. The Veteran submitted evidence of his income since 2012 and there has been substantial compliance with the November 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). As a preliminary matter, the Board acknowledges a May 4, 2021 letter requesting a Board decision and remand regarding the issues of entitlement to service connection for cognitive impairment due to chemical exposure, and service connection for traumatic brain injury due to over exposure to cleaning solvents submitted by the Veteran's attorney. The Board thoroughly reviewed the Veteran's claims file and found that the Veteran did not perfect an appeal by filing a Form 9 within 60 days of the January 31, 2020 Statement of the Case (SOC). The Board's authority to review an adverse Agency of Original Jurisdiction (AOJ) decision is initiated upon a claimant's submission of an NOD and completed by a substantive appeal after an SOC has been furnished. 38 U.S.C. §§ 7105(a); 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, Appeal to Board of Veterans' Appeals, or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date when the AOJ mails the SOC to the claimant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 C.F.R. § 20.302(b)(1). In determining its jurisdiction, the Board recognizes that the VA adjudicative system is non-adversarial and pro-claimant in nature, wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.101(d). The AOJ may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d). As stated above, VA has not received a valid Form 9 in response to the January 31, 2020 SOC or any correspondence within 60 days of the SOC. The Board may decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45. Importantly, unlike the situation in Percy, the Veteran did not file a VA Form 9 addressing those issues. Thus, this is not a situation where an untimely appeal was filed. Thus, the Board does not have jurisdiction over the issues of entitlement to service connection for cognitive impairment due to chemical exposure, and service connection for traumatic brain injury due to over exposure to cleaning solvents. Entitlement to a TDIU is granted. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high disability rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is service connected for posttraumatic stress disorder (PTSD) with depression (70 percent), tinnitus (10 percent), residuals of prostate cancer (10 percent), bilateral hearing loss (noncompensable), and erectile dysfunction (noncompensable). He meets the schedular percentage requirement for consideration of a TDIU under 38 C.F.R. § 4.16(a) based on his service-connected disability. Therefore, the remaining question is whether the Veteran was unable to secure or follow a substantially gainful occupation because of this disability. Substantially gainful employment is that employment which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), marginal employment shall not be considered substantially gainful employment. For purposes of TDIU, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment may also be held to exist, on a fact found basis-including but not limited to employment in a protected environment such as a family business or sheltered workshop-when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The Veteran submitted Social Security Administration (SSA) employment records indicating he earned $1,100 in 2012, $981 in 2014, and no income in 2013, 2015, 2016, 2017, 2018, 2019, and 2020. The national poverty line defined by the United States Census Bureau for 2012 is $11,170 and for 2014 is $11,670. It is unclear exactly how much the Veteran made during the relevant period and to the extent that he worked. For example, it appears that he was fully employed in 2018 and perhaps since that time. However, the AOJ will make the determination regarding the effective date of the TDIU. The Board finds the overall evidence is persuasive that the Veteran is not capable of substantially gainful employment due to his service-connected disabilities. The Veteran graduated from high school and has limited college education. His work history consists mainly of private investigative work. A March 2015 VA psychiatrist noted the Veteran struggled to obtain and maintain gainful employment since discharge. The Veteran could not maintain consistent employment because of meltdowns, explosive behavior, difficulties with multitasking, and failing to conform to business needs. The VA examiner noted the following symptoms: depressed mood, anxiety, chronic sleep impairment, mild memory loss, difficulty in adapting to stressful circumstances, impaired impulse control (such as unprovoked irritability with periods of violence), and anxiety. The Veteran underwent a March 2020 VA examination. The examiner noted the Veteran suffered from occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran suffered from considerable cognitive struggles such as remaining on task, requiring excessive time to complete cases, distractibility, repeated mistakes, and forgetfulness. The Veteran continues to throw objects, exhibit bouts of uncontrolled anger, swears, becomes overwhelmed with computers and multitasking, and desires to destroy furniture. The VA examiner noted that the Veteran did not present with a major neurocognitive/psychiatric disorder other than the service-connected PTSD. In support of his claim for TDIU, the Veteran submitted statements, including letters from his sister, niece, nephew, cousin, former supervisor, and former girlfriend. The Veteran's family and friends describe him as a considerate, loving, thoughtful, dedicated, honest, and hard worker. J.L., the Veteran's former supervisor, stated that the Veteran was unable to conform with the employer's time requirements for tasks, repeatedly made the same mistake, was reprimanded for disregarding company procedures, and had difficulty with computers. Ultimately, the Veteran's reactions scared employees and multiple complaints were filed against him. J.L. noted that the Veteran was not a threat to anyone because his reactions were towards things i.e. the computer, memory loss, repeated mistakes, and not with people. Ultimately, the Veteran's short-term memory difficulties, failure to perform repetitive tasks correctly, employee complaints, and perceived threats led to his termination of employment. J.L. noted that the Veteran attempted to earn a living as a private detective, salesman, and even attempted to earn a nursing degree without success. The Veteran's nephew and niece witnessed the Veteran's rage and his difficulty maintaining employment. A.S. (the Veteran's sister) and J.B. (the Veteran's cousin) witnessed him lose jobs repeatedly, including being terminated from six jobs in 2005. A.S. said the joke became, "So Dave, what job are you doing now?" A.S. stated that the Veteran's depression and demons contributed to his inability to maintain employment. The Board finds that the evidence supports a finding that the Veteran's service-connected disability prevented him from substantially gainful employment for a portion of the period. Medical and lay evidence indicate the Veteran exhibited significant cognitive struggles such as remaining on task, requiring excessive time to complete cases, distractibility, repeating mistakes, and forgetfulness. The Veteran's unreasonable reactions which included rage and unprovoked violence (symptoms of PTSD) led coworkers to fear the Veteran, feel terrorized, and refuse to work while he was in the office. (Continued on the next page) Thus, the Board finds that the evidence is at least in equipoise regarding whether the Veteran was unemployable during at least a portion of the relevant period. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.