Citation Nr: 21032315 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-00 752 DATE: May 26, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's service connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW With reasonable doubt resolved if favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1999 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied a compensable rating for service connected hypertension. In August 2018, the Veteran filed a notice of disagreement, contending, among other things, that entitlement to a TDIU was raised as part and parcel of the claim for a higher rating for hypertension, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009)), and should have been granted. A statement of the case was issued in November 2018, and in December 2018 perfected his appeal to the Board. In an August 2019 decision, the Board, among other things, remanded the issue of entitlement to a TDIU for additional development. In an October 2019 rating decision, the RO, among one other thing, denied entitlement to a TDIU, and notified the Veteran in a January 2020 supplemental statement of the case. In a March 2020 decision, the Board, among other things, denied entitlement to a TDIU. The Veteran appealed the Board decision to the Court of Appeals for Veteran's Claims (Court) which in January 2021 granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating and remanding part of the Board's March 2020 decision finding that the Board failed to provide an adequate statement of reasons or bases regarding entitlement for TDIU by limiting its analysis to the Veteran's service connected posttraumatic stress disorder (PTSD). TDIU A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as 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 following: 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. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. "A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id. The Veteran is currently service connected for the following: PTSD, evaluated as 70 percent disabling from May 17, 0217; cardiomyopathy, evaluated as 30 percent disabling from October 26, 2015; tinnitus, evaluated as 10 percent disabling from August 10, 2017; left ankle fracture, evaluated as 10 percent disabling from September 14, 2017; and right ear hearing loss, hypertension, right clavicle fracture, and 5th metatarsal bone of the right foot fracture, each evaluated as noncompensable. The Veteran thus has a combined 80 percent rating with at least one disability rated as 40 percent disabling or greater from May 17, 2017, and therefore meets the percentage requirements for a TDIU in accordance with 38 C.F.R. § 4.16 (a) from that period. Nonetheless, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation due to his service connected disabilities. The Veteran's VA 21-8940 reflects that he has 2 years of college education, and was enrolled as a full-time student at Texas Tech University under Chapter 31 vocational rehabilitation. It also indicates that the Veteran last worked full-time in safety, became too disabled to work in September 2015, and that his PTSD prevents him from securing or following any substantially gainful occupation. In a July 2017 VA examination report, the Veteran reported difficulty with attention, concentration, and short term memory due to his PTSD. He also reported hypervigilance, and avoidant behaviors such as isolation, staying away from crowds, and difficulty initiating and maintaining healthy social, personal, and professional relationships. In an October 2017 VA examination report, the Veteran reported that his ankle disability prevented him from walking up and down stairs, running, or roller skating, and the examiner noted that the Veteran experienced decreased ability in performing activities that require standing, walking, lifting, or bending, especially with repetitive or prolonged activity. In a September 2018 counseling record report, the counselor reported that the Veteran was previously employed in an oil field which required long periods of standing, walking, and climbing, and that his service connected ankle disability prevented him from returning to this type of work. The Veteran was noted as having difficulty with his PTSD, and reported relationship problems, insomnia, and paranoia. The counselor determined that the Veteran has an employment handicap, noting that the Veteran is hypersensitive to loud, sudden noises and crowds. The counselor stated that the effects of the impairments (both service connected, and non-service connected) contribute in an identifiable, measurable and/or observable way to the Veteran's ability to obtain, maintain, or retain employment that is consistent with his disabilities. The counselor reported that the Veteran does not possess the training and/or education that qualifies him for suitable employment, and that the Veteran has not overcome impairment to employability. The counselor also noted that the Veteran met the criteria for an employment handicap since the service connected disabilities contribute in substantial part to the vocational impairment, and the Veteran has not overcome the effects of the impairment through further education, transferable skills, or by obtaining and maintaining suitable work. Medical treatment records furnished by the Social Security Administration (SSA) in September 2019 and December 2019 indicate that it was determined that the Veteran's condition is not severe enough to keep him from working considering the medical and other information. A March 2021 Veteran Readiness and Employment Counselor reported that the Veteran was provided with a full range of Chapter 31 services to complete his vocational plan, but the Veteran failed to complete his program. In an April 2021 vocational assessment, the evaluator noted that the Veteran has a past work history of oil field labor, as well as retail sales. He reported that the Veteran is precluded from obtaining and maintaining substantial gainful employment due to the symptoms caused by his service connected PTSD and physical disabilities as he would be off task at an unacceptable rate, experience extreme difficulty maintaining effective work and social relationships with co-workers, customers, or supervisors, and be unable to perform physically strenuous labor. The evaluator noted that the Veteran experiences difficulty adapting to stressful situations, completing tasks, following directions, or concentrating on a daily basis, and has impairment in his ability to perform activities of daily living. The evaluator stated that any skills the Veteran may have developed through his previous employ would be overwhelmed by the severity of his psychiatric limitations and symptomatology, and that the physical limitations associated with his ankle disability would prevent him from performing physically strenuous labor such as that of an oil field worker. The evaluator opined that the Veteran would be unable to develop or maintain appropriate working relationships with coworkers, supervisors, or customers, and more likely than not would experience significant absenteeism from the workplace due to his psychiatric symptomatology. He also stated that the Veteran would be off task more than 10 percent of the work day, experience excessive absenteeism, and be unable to maintain a regular and predictable work schedule, or meet the pace and production demands required in competitive employment even at the sedentary level due to his psychiatric symptomatology. The evaluator concluded that the Veteran has been unable to maintain substantially gainful employment on a regular and consistent basis even at the lowest available level of work due to his service connected disabilities since at least May 2017. Based on the foregoing, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's service connected disabilities preclude him from securing and following substantially gainful employment for which he would otherwise be qualified. The Veteran's work history has involved working in retail sales and as an oil field worker, but the evidence of record reflects that his left ankle disability prevents him from performing the requisite duties for either such occupation as he is unable to walk, stand, or lift for any prolonged period of time. The evidence also indicates that the Veteran's PTSD prevents him from being able to adequately perform his duties as the April 2021 vocation evaluator reported that the Veteran would be unable to maintain an appropriate working relationship with his customers, coworkers, and supervisors, and would likely experience significant absenteeism. Furthermore, the September 2018 counselor reported that the Veteran does not possess the training and/or education that qualifies him for suitable employment. The Veteran's noted inability to adapt to stressful situations would also make it unlikely that he would be able to sustain employment as stressful demands are reasonably expected with most occupations, including those with which the Veteran has experience, and his inability to cope in such situations would impair his ability to perform his duties. Additionally, the April 2021 evaluator opined that the Veteran's service connected disabilities prevent him from maintaining substantially gainful employment and provided a thorough rationale to support his opinion, thus his opinion is afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). (Continued on the next page) The evidence of record is thus at least evenly balanced as to whether the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor the Veteran, entitlement to a TDIU is warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.