Citation Nr: 21040590 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-14 710 DATE: July 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from October 9, 2017 is granted. FINDING OF FACT From October 9, 2017, the date of receipt of claim, the Veteran's service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history and training. CONCLUSION OF LAW From October 9, 2017 the criteria for a TDIU have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from April 1968 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a VA Regional Office (RO). In February 2021, the Veteran testified before the undersigned and a transcript of that hearing has been associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). TDIU The Veteran contends that his service-connected disabilities have precluded him from substantially gainful employment. See February Hearing P 7. Generally, a TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, for the period on appeal, the Veteran has a total combined disability rating of 80 percent based on the following disabilities: posttraumatic stress disorder (PTSD), rated 70 percent; diabetes mellitus type 2 (diabetes), rated 20 percent; tinnitus, rated 10 percent; diabetic peripheral neuropathy of the bilateral lower extremities, both rated 10 percent; and high frequency hearing loss, rated 0 percent (noncompensable). Accordingly, the Veteran has met the threshold disability requirements of 38 C.F.R. § 4.16 for a schedular TDIU rating. As will be discussed in greater detail below, the Board finds that a TDIU is warranted from October 9, 2017, representing the date the VA received the Veteran's claim for TDIU. The Veteran served in the Army for almost four years including service in the Republic of Vietnam. His military occupational specialty was field artillery surveyor and was awarded both the Vietnam Service and Vietnam Campaign medals. The Veteran completed a VA Form 21-8940 in October 2017. He reported completing one year of college and last worked for Union Pacific Railroad as a freight train conductor in October 2010 when he retired. He asserts that he retired due to progressive difficulties with performing job duties as a result of his service-connected disabilities. In August 2007, the Veteran was afforded a tinnitus and hearing loss VA examination. During this examination, hearing loss and tinnitus were both found to be associated with the Veteran's military service. However, functional impact was not noted by the examiner nor reported by the Veteran at this time. In December 2009, the Veteran was afforded a diabetes VA examination. It was noted that the Veteran was first diagnosed with diabetes in 1998 but did not begin taking medications for the condition until 2008. The Veteran reported still working full time at the railroad company however, he also reported pain, tingling, and "a feeling like a wad of socks under his toes" in both feet. The examiner found no evidence of diabetic peripheral neuropathy at this time. In April 2012, the Veteran was afforded a peripheral neuropathy VA examination. At this time, the Veteran was diagnosed with diabetic peripheral neuropathy of the lower extremities. The Veteran reported the onset of symptoms to be 2010. Currently, the Veteran reported experiencing numbness, burning and pain as if standing on needles. He also reported difficulty with walking without having shoes on. The examiner noted symptoms of mild intermittent lower extremity intermittent pain, paresthesia and/or dysesthesias, and numbness. It was further reported that the Veteran had lower extremity neuropathy of the sciatic nerve with mild incomplete paralysis. Ultimately, the examiner opined that the Veteran's bilateral diabetic peripheral neuropathy had no functional impact in the Veteran's ability to work. However, the examiner went on to remark that the Veteran "would need sedentary work if he were to work". In May 2013, the Veteran underwent another tinnitus and hearing loss VA examination. Once more it was confirmed that the Veteran experienced noise exposure during service as the result of artillery noise. The Veteran reported difficulty hearing in a noisy environment, hearing the television, hearing his spouse, and hearing certain tones. The examiner opined that the Veteran's tinnitus has no functional impact but did not provide any opinion as to the Veteran's hearing loss. In February 2018, the Veteran was afforded a VA PTSD examination. The Veteran reported last working in 2010 for the railroad company and indicated he was having arguments with supervisors which led to suspensions about five times when he was working. The examiner confirmed the Veteran's diagnosis of PTSD with other specified depressive disorder. It was summarized by the examiner that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. It was noted that the Veteran's occupational social impairment is due to PTSD. The examiner further noted that the Veteran's wife and son reported that Veteran is volatile around the home and frequently has anger outbursts. The examiner noted PTSD symptoms of depressed mood, anxiety, chronic sleep impairment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Observationally, the examiner noted that the Veteran was casually dressed and well-groomed with no signs of major psychopathology such as hallucinations. It was noted that the Veteran was tearful at times when talking about his problems. The examiner noted that the Veteran was capable of managing his own finances. The examiner went on to opine that the Veteran "would have periodic difficulty engaging in appropriate social interaction on a job due to poor anger control and being argumentative. He likely would have periodic difficulty sustaining attention on a job due to intrusive thoughts but in general is able to sustain attention needed for job task completion". The examiner concluded that the Veteran "is at least as likely as not able to work a sedentary job which is loosely supervised and has little interaction with the public". In support of the Veteran's claim, he and his representative submitted several supporting statements by his family members as well as correspondence from treating counselors though the VA. The Veteran's sister, J.L., submitted a statement dated March 2018 which reported the Veteran's strained relationship with their parents. She also reported that the Veteran is divorced from his first wife with whom he has two older sons. Currently, the Veteran is estranged from his older children. J.L. further stated that she has observed the Veteran being easily angered despite ongoing therapy and anger management classes. Ultimately, she concluded that the war in Vietnam made her brother a "broken man, nothing like the happy go lucky brother that I had pre-Vietnam". An additional supporting statement from the Veteran's youngest son, J.L. supports his sister's reports and expands on them greatly. J.L. reported that the Veteran is haunted by his experiences in Vietnam which cause him to be very angry and irritable. Over the past year, J.L. reports that he has noticed that the Veteran has had difficulty doing daily activities and noted that "personal hygiene has deteriorated". Socially, J.L. reports that the Veteran has lost friends due to the Veteran's lack of motivation in investing in relationships including those of his immediate family. J.L. further states that the Veteran has had several public altercations in which he had to be physically restrained beginning in the mid 2010's. Once again J.L. reported that the Veteran is estranged from his eldest two sons. His relationship with his current wife was also reported as strained noting that the Veteran constantly argues with her and that they do not sleep in the same room. Additionally, the Veteran was reported as keeping a loaded pistol in his bedroom to "feel safe". Lastly, J.L. reported saddened at the fact that he had to move out last year because "he could not stand [Veteran's] behavior anymore". He explained that conversations with his father always turned into huge arguments and today he feels he does not have a normal father-son relationship with him due to his conditions. The Veteran's wife testified at the February 2021 hearing before the Board. She also reported the Veteran's severe anger issues and irritability. She further testified to observing his struggles with sleeping at night due to recurring memories and that arguments they have sometimes end up with fights. Lastly, she testified that his symptoms are getting worse and that he cannot concentrate in order to do many activities. A March 2018 correspondence from then treating counselor M.R., noted that the Veteran exhibits severe social impairment including isolation from others who are not fellow veterans. Counselor M.R. noted that the Veteran struggles with irritability and angry outbursts indicating that he has had a history of public altercations. He has difficulty concentrating and cannot complete projects. It was further indicated that the Veteran has occupational impairment due to his level of anger and lack of impulse control. She mentions that he has medicated himself with alcohol over the years, his son has run away from home due to his level of anger, and his family reports being afraid of him. Once more, M.R. confirmed estrangement from his eldest sons and that he does not contact his parents or siblings. His family relationship is so strained that M.R. noted that the Veteran did not grieve the loss of his father in 2012. When questioned about the experience, the Veteran responded, "it is fine". Counselor M.R. concluded that the Veteran "continues to experience symptoms that have caused impairments in all aspects of his life and the people that are close to him". In December 2020, the Veteran's current counselor through the VA, counselor E.D., submitted a statement in support of the Veteran's claim for entitlement to a TDIU. Counselor E.D. noted the Veteran's severe PTSD symptoms including recurring memories, anger, and irritability. Ultimately, counselor E.D. opined that workplace stress likely contributed to and aggravated his PTSD symptoms. In the event the Veteran were to seek new employment, counselor E.D. further opined, that "his PTSD would likely worsen". Instead it was recommended that the Veteran focus solely on his mental health. The final determination with respect to a Veteran's entitlement to a TDIU is an adjudicatory, rather than a medical, function. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran's description of the functional effects of his service-connected disabilities as they relate to his level of education and prior occupational experience, the Board is persuaded that the Veteran is unable to secure or follow a substantially gainful occupation as a combined result of his service-connected disabilities from October 9, 2017, the date VA received his claim. The Board finds that the Veteran's service-connected disabilities prevent the Veteran from obtaining and maintaining substantially gainful employment, as the Veteran's problems would make most areas of employment extremely challenging. As noted above, the Veteran's bilateral lower extremity diabetic peripheral neuropathy would likely limit him to sedentary occupations. See April 2012 VA Peripheral Neuropathy Examination. In addition, the Veteran's PTSD would further limit his occupational ability due to his severe anger and irritability symptoms which prevent him from interacting socially and maintaining work relationships. Current treating counselors through the VA, have stated that the Veteran's PTSD symptoms are so severe that it is recommended that he do not seek employment. See December 2020 Correspondence from Counselor E.D. Important to note, the Veteran has testified that while he was working at Union Pacific, he was suspended upwards of five times due to altercations with supervisors. These suspensions were described as being almost like firings which lasted at least thirty days, and, in some cases, he was prevented from returning to work for sixty days. See February 2021 Hearing P. 3. Additionally, while the Veteran does have some college experience, he is unlikely to find a job similar to railroad conductor as he worked in that position for the entirety of his post military occupational career. Furthermore, the Veteran has testified to the absence of computer skills which are currently limited to the use of basic email and internet usage. See February 2021 Hearing P 5. At a minimum, the evidence is at least in equipoise, which is enough to resolve the claim in the Veteran's favor. A TDIU is therefore granted from October 9, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.