Citation Nr: 21032897 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-35 263A DATE: May 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether service-connected post-traumatic stress disorder (PTSD) with cannabis use disorder disable the Veteran from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102; 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to July 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously before the Board in May 2020 when it was remanded for additional evidentiary development. Entitlement to a TDIU The Veteran contends that his PTSD causes him to be unemployable. Law and regulations An appellant generally controls the scope of appellate review by selecting the issues upon which an appeal to the Board is sought. See Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). An appellant may expressly limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). A request for a TDIU involves an attempt to obtain an appropriate rating for a disability and is part of a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). While a claim for increased rating for PTSD was pending, the Veteran filed a claim for TDIU that was received by VA in October 2014. This claim is part and parcel of the underlying PTSD claim that was pending at the time of the filing. In general, a TDIU may be assigned initially by the Board if the schedular rating is less than total and 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 service-connected disabilities, provided that one of those disabilities is ratable 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. §§ 3.340, 3.341, 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this matter, the threshold percentage criteria for TDIU consideration by the Board (schedular TDIU) pursuant to 38 C.F.R. § 4.16(a) are met. Currently, PTSD and a cannibis use disorder is rated 70 percent disabling. Evidence A March 2014 compensation work therapy (CWT) outpatient consultation reported the Veteran was physically able to work and that there were no limitations to the Veteran's ability to work. In October 2014, at his VA examination, occupationally it was noted that he worked in car detailing since his discharge form Marine Corps. From 2007 to early 2014, he was not employed, following the loss of his job when a car dealership went out of business. However, the examination noted the Veteran was in the CWT program and working at a small dealership at the time of the examination. He reported that being able to work alone in his own space was helpful for his own performance. A January 2015 psychiatry note reported the Veteran was working at a car lot and "doing whatever is needed." He was enjoying the work, and mostly worked by himself. He lived with his mother and it was "going good." He said he had cut back on marijuana usage and was not using alcohol. A March 2015 CWT note reported the Veteran was still working at the job. He denied using alcohol or illicit substances. He was getting paid for competitive employment with 8-hour days / 40 hours a week. His wage was 8.00/hr. An August 2015 Psychiatry note reported the Veteran had a chronic bad attitude which had been getting worse for months, per his girlfriend and mother. He said, both his mother and girlfriend had been complaining about his attitude since he stopped taking his medications about 14 months ago. He was working 7pm to 3am doing cleanup work at a big factory. In October 2015, the Veteran reported his chronic mild depression was "fair" in the context of liking his job. His PTSD-associated irritability had improved. That same month, the Veteran discharged from CWT. At the time of the discharge, he was found to be capable of competitive employment. He was being paid full time competitive employment in the CWT community. In January 2016, a psychiatry attending, reports the Veteran stated his relationship with his girlfriend was off because they bumped heads. However, this was not because of his chronic irritability because he was able to get along with his mother and continue working cleaning up the cardboard at the mill. He still liked his job, and he reported that he benefited from the structure of the job. He reported he was not taking his medication of sertraline because he wanted to be alert in case of terrorism. He was not having associated depression but cried when he saw people doing good things for others. In March 2017, the Veteran had worsening PTSD symptoms. He talked about losing his job. He became tearful while discussing the event and felt he had let others down. He now was staying in his room all the time and becoming tearful. He denied alcohol use but reported he used marijuana every now and then. A March 2017 private treatment record from psychologist K.U. reflects that based on an interview with the Veteran from March 2017, the Veteran had symptoms associated with PTSD and major depressive disorder including depression, severe anxiety, nightmares, paranoia, self-isolation, hyper-alertness, loss of focus, anger, and impulsive behaviors. The Veteran reported to K.U. that he was sleeping with a gun under his pillow and arguing with his supervisor at work. K.U. noted that the Veteran's mother was his legal guardian, made his doctor's appointments, opened his mail, handled all financial matters, and provided him with food and shelter. As a result, K.U. assessed that the Veteran's symptoms are so severe that the Veteran is unemployable and is cared for by his mother. At the end of March 2017, a mental health outpatient initial evaluation note reported the Veteran was living with his mother, daughter, and grandson; but isolated himself in his room. He endorsed empathy, since having to leave his job of two years around Christmas. While he trained three young men, they were all offered supervisor jobs above him. He reported this was due to the supervisor not liking him. This made it difficult, reportedly, for the Veteran. He left the job voluntarily around Christmas for fear of harming the supervisor. He stayed up all night with fears of bad events and slept all day. A month later in April 2017, the Veteran endorsed short-term memory problems, like forgetting where he parked his car. He reported watching the news made him want to be in the fight because he was more comfortable being in the military versus the civilian world. A February 2018 VA examination opined the Veteran's symptoms appeared to have resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks, although generally functioning satisfactorily with normal behavior, self-care, and conversation. He was still living with his mother but reported that he was independent, and she was not his caretaker. He reported he left his last job because he believed his previous supervisor had racist motives but was functioning well enough to train new employees that were appointed to supervisor. He reported, again, he left the job because he began to fantasize about harming his supervisor. His concentration problems and fatigue due to his sleep problems may have interfered with his ability to complete tasks in an efficient manner and his irritability and anger may have negatively impact his interpersonal relationships. The examiner opined that the Veteran's PTSD did not prevent him from doing physical labor; but it did limit his ability to get tasks done due to decreased energy because of chronic sleep problems. Also, poor concentration reduced his ability to perform and his irritability may negatively affect his interpersonal relationships with co-workers and supervisors due to his desire to isolate from other people. A December 2020 vocational assessment opines that based on a review of the Veteran's records, along with an interview conducted in December 2020, included the finding that the Veteran's service connected conditions are likely to have resulted in his inability to secure or maintain substantially gainful employment at any exertional level as of the termination of his employment on December 22, 2016. The assessment observed the following limitations: irritable behavior, hypervigilance and paranoia, exaggerated startle response, insomnia, symptoms so severe that he is unemployable, daily irritability, chronic sleep impairment, difficulty in adapting to stressful circumstances- including work or a worklike setting, concentration problems due to sleep problems, inability to leave his mother's basement for fear of getting into altercations, discomfort in crowds and crowd avoidance, avoiding driving due to becoming lost and forgetting his destinations, difficulty recalling instructions, weekly flashbacks, regular loss of emotional control, history of altercations with coworkers, history of bringing a weapon to work, distorted belief that altercations were inevitable, consistent use of foul language, and increased irritation. Analysis The evidence is in a state of relative equipoise regarding whether PTSD and the cannibis use disorder disable the Veteran from securing and following a substantially gainful occupation. During the appeal period, the Veteran continuously endorsed, and medical professionals observed, issues with focus, attention, and concentration due to his PTSD. Moreover, the private expert medical opinions of record (March 2017 and December 2020) and his February 2018 VA examination support the conclusion that his irritability affected his interpersonal relationships in a worklike setting, and his sleep impairment affected his ability to concentrate and focus. Notably two private opinions of record indicate the Veteran is not employable. The Board acknowledges the March 2017 opinion relies somewhat on the premise that the Veteran's mother was his caretaker, and the Veteran reported at his February 2018 VA examination that he was still independent. The March 2017 VA examination opinion is not based on an accurate factual background. Nevertheless, the December 2020 private findings are probative as they are based on a thorough review of the Veteran's psychiatric disability and how it has affected his work history. The evidence shows that the Veteran participated in a work therapy program during the appeal period. Further, it is reported that this employment was competitive and full time. The evidence indicates, however, that this was marginal employment. The work settings at his occupations during the period on appeal indicate he was isolated from other employees. Although the evidence suggests he was able to train individual employees during the period on appeal, the evidence also indicates his PTSD symptoms of anger, irritability, and paranoia heavily affected his ability to interact with others and led to him leaving his last place of employment. Moreover, as he lacked the ability to focus, had memory issues, and needed to be isolated from others due to his irritability, this suggest he could not work in an office environment and do tasks such as filing papers, making copies, and answering phone calls. Consideration has been given to the Veteran's level of education, training, and work experience but not to his age or any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In sum, the evidence is divided with regard to whether service-connected PTSD disables the Veteran from securing and following a substantially gainful occupation. Certain evidence indicates that he has been capable of productive employment during the appeal period, while other evidence indicates that he has been unemployable. Based on the foregoing evidentiary background, the Board cannot find that a preponderance of the evidence is against the claim. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (Continued on the next page) The claim is granted. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.