Citation Nr: 21031450 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 19-33 588 DATE: May 21, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The evidence of record shows that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1962 to December 1966. Service in the Republic of Vietnam is indicated by the record. The Veteran is the recipient of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for posttraumatic stress disorder (PTSD) with unspecified alcohol related disorder. A statement of the case (SOC) was issued in September 2019 and the Veteran perfected a timely appeal in October 2019. Although the Veteran's claim of entitlement to a TDIU was separately adjudicated in a May 2018 rating decision and a September 2019 SOC, the Board finds that the Veteran's assertion of entitlement to a TDIU was raised as part and parcel of the initial rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In a July 2020 Board decision, the claim was remanded to await development of the Veteran's claims of entitlement to service connection for a right knee disability, a right ankle disability, a right heel disability, erectile dysfunction and chronic onychomycosis and tinea pedis of the feet. The Board recognizes that development of the right ankle, right heel, and onychomycosis/tinea pedis claims remain pending and that the Veteran was recently granted service connection for erectile dysfunction, as well as disabilities of the right knee. To this end, the Board notes that any assertion of TDIU due to these issues would be downstream matters and must be separately pursued by the Veteran. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). A supplemental statement of the case (SSOC) was issued in December 2020. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to a TDIU. TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court addressed the issue of entitlement to an earlier effective date in a TDIU claim, and held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the one-year prior to the claim, the increase in disability was ascertainable. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In this matter, the Veteran asserts entitlement to a TDIU. For the reasons set forth below, the Board finds that an effective date of September 27, 2017, the date of the grant of service connection for PTSD. See the rating decision dated November 2017. As described above, the Board recognizes that the matter of entitlement to a TDIU was raised during the Veteran's pursuit of his claim of entitlement to a higher initial rating for PTSD. See Rice, supra. Specifically, the Veteran described significant occupational impairment as a result of his psychological symptoms. See, e.g., the Veteran's VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). For the period herein under consideration (from September 27, 2017), the Board notes that the Veteran was service connected for PTSD, evaluated as 70 percent disabling; diabetes mellitus, type II, with erectile dysfunction, evaluated as 20 percent disabling; right knee arthritis (flexion), evaluated as 10 percent disabling; and right knee arthritis (extension) evaluated as 30 percent disabling from May 13, 2021. As such, the Veteran met the criteria for a schedular rating for TDIU pursuant to 38 C.F.R. § 4.16(a). The Board must therefore consider whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. As detailed above, the Veteran's service-connected disabilities including PTSD have interfered with his ability to maintain gainful employment for the period herein under consideration. Specifically, the Veteran was afforded a VA examination in October 2017 at which time the examiner reported that the Veteran's psychological symptoms manifested in "[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood." The examiner noted that the Veteran experienced symptoms including avoidance of crowds, recurrent thoughts, dissociative reactions, avoidance, persistently negative emotional state, markedly diminished interest or participation in significant activities, and feelings of detachment or estrangement from others. The Veteran also described irritable behavior, outbursts of anger, sleep disturbance, depressed mood, suspiciousness, chronic sleep impairment, flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In a May 2018 examination report, the VA examiner reported that the Veteran's PTSD symptoms manifest in "[o]ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication." The Veteran reported that he did not graduate from high school, but earned his GED. He reported that he last worked in 2006. The Veteran stated that "[h]e feels his mood instability caused problems in his marriages and also at work." He endorsed symptoms including recurrent distressing dreams, avoidance, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, exaggerated startle response, problems with concentration, and sleep disturbance. He additionally reported depressed mood, anxiety, chronic sleep impairment, and disturbance of motivation and mood. In a June 2018 VA examination report, the examiner stated that the current intensity of the Veteran's PTSD symptoms "does not affect his ability to perform and sustain work under minimal stress and supervision." In a December 2019 statement, the Veteran described a history of verbal altercations and irritability in the work setting. He additionally reported a history of conflicts with managers and those in positions of power. The Veteran stated that, in 2013, he earned an associate's degrees in electrical engineering and HVAC heating and cooling systems. The Veteran worked for a temporary (temp) agency from 2014 to 2015, and "I quit this temporary assignment due to my PTSD symptoms." See the Veteran's statement dated December 2019. He stated that he was unable to fulfill his dream of owning his own business because "I did not have the motivation to actually go through with it. I have never tried to work or start my own business again because I know that I cannot work well with others and I do not have the ambition to work for myself." Id. He further reported, "I still have a hard time getting along with others, especially with authority figures. I really do not like being told what to do or how to do things." Id. In support of his claim, the Veteran submitted a private vocational assessment dated in April 2020. The vocational evaluator indicated that, upon review of the Veteran's medical history, his symptoms and limitations of his PTSD, which have impacted his daily living and quality of life since at least September 2017 include: isolation, mood swings, irritability and anger outbursts, anxiety, chronic sleep impairment with daytime fatigue, suicidal ideation, flashbacks, and inability to maintain attention and concentration. She explained that the Veteran last worked for a temporary agency for three to four months from 2014 to 2015. Prior to that, he was employed as a laser welder, but stopped working in 2006. The vocational evaluator stated that the Veteran's PTSD symptoms "would reduce his ability to remain on task and produce a certain minimum amount of work each day. Further, his PTSD makes him irritable and he has difficulty interacting appropriately and effectively with others, as is required in all competitive employment." The evaluator stated that in her vocational opinion, the Veteran's PTSD "at least a likely as not renders him unable to sustain adequate pace and productivity due to distraction from psychologically based symptoms." The vocational evaluator noted that the Veterans' "inability to meet the basic requirements of all work, to include even unskilled sedentary work, would eliminate his ability to work in a competitive work environment at any skill or exertional level." She noted that the Veteran's PTSD "renders him unable to sustain adequate pace and productivity due to distraction." She explained that the Veteran "would more likely than not be off task in excess of employer tolerances, which would cause him to be unable to consistently produce a certain minimum amount of work on a daily basis." The vocational evaluator further stated that the Veteran's "PTSD causes him to become angry and irritable, which would preclude him from interacting appropriately and effectively with others, as is required in all competitive employment." The vocational evaluator concluded that it is more likely than not that the Veteran is unable to secure and follow substantially gainful employment due to his PTSD since at least September 2017. The above evidence thus reflects that the Veteran's service-connected disabilities significant impacted on his ability to work from September 27, 2017. Although some health care professionals have opined that the Veteran's psychological symptoms do not render him unemployable, 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). Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Id. at 1354. The above evidence thus reflects that the Veteran's service-connected disabilities have a significant impact on his ability to work. Accordingly, the evidence is approximately evenly balanced as to whether his service-connected disabilities render him unable to secure and follow substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted September 27, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.