Citation Nr: 21030820 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-16 126 DATE: May 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied prior to February 11, 2019. From February 11, 2019, entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to February 11, 2019, the evidence does not show that the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. 2. Resolving reasonable doubt in the Veteran's favor, from February 11, 2019, the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to February 11, 2019, the criteria for a TDIU are not met. 38 U.S.C. § 1155; 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). 2. From February 11, 2019, the criteria for a TDIU are met. 38 U.S.C. § 1155; 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1969 to September 1970. This case is on appeal to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in May 2012. In January 2021, the Board adjudicated the Veteran's claimed for an increased rating for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) and inferred a TDIU claim as part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the claim of entitlement to a TDIU to the AOJ for additional development. On remand, the AOJ notified the Veteran of what was needed for the TDIU claim, including enclosing and requesting a completed formal application (VA Form 21-8940). The Board notes that the Veteran did not return the Form 21-8940, but as the AOJ complied with the remand directives, the claim is ready for adjudication. See Stegall v. West, 11 Vet. App. (1998) (the Board is obligated to ensure AOJ compliance with remand directives). 1. Entitlement to a TDIU Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). The United States Court of Appeals for Veterans Claims (Court) has identified the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) has having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination regarding entitlement to a TDIU, it is necessary that the record reflect some factor which takes the Veteran's 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. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The most recent rating decision code shows that the Veteran is service-connected for: PTSD with MDD, which is rated at 70 percent for the entire appeal period; diabetes mellitus type II, rated at 20 percent for the entire appeal period; and malaria residuals, which is noncompensable (0 percent). Effective from June 23, 2011, the Veteran has a combined rating of at least 70 percent, with at least one disability rated at least 40 percent disabling, meaning he meets the threshold schedular eligibility requirements for TDIU. The question, then, is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his PTSD, diabetes mellitus, and malaria residuals. As explained in greater detail below, the Board denies the claim prior to December 3, 2019, and resolves reasonable doubt in the Veteran's favor and concludes that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation, effective December 3, 2019. Turning to the evidence, the Veteran was afforded a general VA examination in October 2007. The examiner noted that he worked in home construction and as a housepainter for many years. A year prior, the Veteran fell and hurt his back, and was trying to work on a limited basis. He was limited by back pain. The Veteran also had "significant problems" with his right foot because of a fracture that required surgery. The Veteran was also limited by urinary symptoms caused by an enlarged prostate, and pain from osteoarthritis in his fingers. The Board notes that there is no evidence showing that the Veteran's malaria residuals impact his ability to work. The Veteran underwent a VA examination for PTSD in January 2012. His psychosocial problems included unemployment. The examiner reviewed a July 2011 outpatient record, which indicated that the Veteran experienced higher levels of depression due to financial difficulties and back pain. He was generally functioning well, with a long-term relationship and frequent socialization with friends. The Veteran did not endorse feelings of detachment or estrangement from others or diminished interest or participation in activities. The Veteran's educational and occupational history was described as 12th grade education, then military service, then work as a house framer. The Veteran had been unemployed since 2005 due to a nonservice-connected back injury. The Veteran met the diagnostic criteria for PTSD and his symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and mild memory loss. The Veteran did not experience difficulty in adapting to stressful circumstances, including work or a worklike setting; difficulty establishing and maintaining effective work and social relationships; difficulty understanding commands; impaired judgment; inappropriate behavior; neglect of personal appearance; or impaired communication or impulse control. The examiner concluded that the Veteran's PTSD with MDD caused occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran had a VA examination for his diabetes mellitus in January 2014. The examiner opined that diabetes did not impact the Veteran's ability to work. The Veteran was afforded a VA examination for PTSD and MDD in September 2017. He reported that he had a "very good" relationship with his wife and two of his stepchildren. The Veteran had several friends, played music with them, and enjoyed golfing and fishing. He denied any occupational problems secondary to mental symptoms. Specifically, the Veteran denied poor social interaction, difficulty concentrating, difficulty following instructions, forgetfulness, and inappropriate behavior. The Veteran reported that he was productive and reliable when he was working. The examiner indicated that the Veteran's judgment and insight were good. His PTSD symptoms included nightmares, irritability, and anxiety. The examiner concluded that the Veteran's PTSD with MDD caused occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran testified at a Board hearing on February 11, 2019. He reported symptoms such as flashbacks and nightmares. The Veteran also testified that he did not feel safe outside his home and he preferred to stay at home. The Veteran's wife testified that he did not like leaving his room, that he panicked when he had to leave the room, got confused easily, and had to be reminded to attend to personal hygiene. The Veteran's wife explained that if the Veteran did leave the house, he had to hurry back, and he did not even leave the house to do yardwork because of paranoia. She testified that his symptoms were better five years prior, but they had gotten worse. The Veteran underwent a VA examination in December 2019. The examiner diagnosed the Veteran with PTSD and MDD, and noted that it was not possible to differentiate the symptoms attributable to each as they overlapped. He exhibited sadness, loss of pleasure in previously enjoyed activities, social isolation, fatigue, and feelings of worthlessness. The examiner noted that the Veteran struggled to verbalize his thoughts and feelings, and his wife articulated her observations of him. The Veteran had an excellent relationship with his wife, stepchildren, and grandchild, but he had been isolating himself and stopped playing music. The Veteran reported increased anxiety, paranoia, and flashbacks. His symptoms included near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; panic attacks more than once a week; depressed mood; mild memory loss; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and suspiciousness. The Veteran's spouse indicated he had become more irritable and more easily confused. After reviewing the evidence, the Board concludes that, prior to February 11, 2019, the claim for a TDIU is denied, but from February 11, 2019, the claim is granted. Prior to the date of the Board hearing in February 2019, the Veteran's PTSD and MDD symptoms did not prevent him for obtaining and maintaining substantially gainful employment. The record shows that the Veteran stopped working because of a nonservice-connected back disability, and that other medical ailments impacted his ability to work. His PTSD did not impair his abilities to maintain effective working relationships, control his anger, or adapt to stressful circumstances. Importantly, at the September 2017 VA examination, the Veteran denied any occupational problems secondary to mental symptoms. The Veteran's diabetes mellitus also did not impact his ability to work. Therefore, for the appeal period prior to February 11, 2019, a TDIU is not warranted. However, from the date of the Board hearing in February 2019, the Board resolves reasonable doubt in the Veteran's favor and grants a TDIU. The evidence shows that the Veteran has not been substantially gainfully employed during the appeal period, given that he reported his last employment was in 2005 or 2006. On February 11, 2019, the Veteran's wife testified that he had high anxiety and panicked when he had to leave his room, and that he could not leave the house because of paranoia. The Veteran also testified that he did not feel safe outside his home. The December 2019 VA examiner indicated that the Veteran experienced near-constant panic or depression that impacted his ability to function independently. The examiner further noted that the Veteran struggled to express himself, which was evident in his February 2019 testimony. Memory loss and confusion were also symptoms documented that are attributable to the Veteran's PTSD and MDD. Therefore, from the date of the hearing, the Board finds that the Veteran's PTSD symptoms prevent him from performing the mental acts required of employment. As a final note, the Board acknowledges that the appeal period begins one-year prior to June 2011, a period during which the Veteran did not meet the threshold schedular criteria for entitlement to a TDIU. However, there is no relevant evidence within the year preceding the June 2011 claim for service connection for PTSD that would indicate that referral to the Director of VA's Compensation & Pension Service for extraschedular TDIU consideration is warranted. See Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for an increased-compensation claim apply to a TDIU claim). (Continued on the next page) In sum, the Board grants the claim for a TDIU, effective February 11, 2019. Prior to that date, the claim is denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.