Citation Nr: 21041276 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-50 836 DATE: July 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective January 1, 2012 to December 23, 2014; and from August 3, 2015, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran's service-connected major depressive disorder and anxiety disorder prevented him from obtaining and maintaining substantially gainful employment effective January 1, 2012 to December 23, 2014; and from August 3, 2015. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met, effective January 1, 2012 to December 23, 2014; and from August 3, 2015. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.400, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to April 1974. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board, in pertinent part, denied the Veteran's TDIU claim in August 2019. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court); and pursuant to a joint motion for partial remand (JMPR), the Court vacated the Board's decision in August 2020, insofar as it denied the Veteran's claim for a TDIU. The JMPR found that the Board erred in failing to adequately consider the factors related to the Veteran's mental abilities to perform tasks required for substantially gainful employment. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran seeks a TDIU due to his service-connected major depression with anxiety. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service connected for major depressive disorder and anxiety disorder, rated 70 percent, from July 7, 2008 to December 23, 2014; 100 percent from December 23, 2014 to August 3, 2015; and 70 percent from August 3, 2015. As the Veteran has one disability rated 60 percent or more, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted, effective January 1, 2012 to December 23, 2014; and from August 3, 2015 to present. The issue of entitlement to a TDIU is rendered moot for the period from December 23, 2014 to August 3, 2015, as the Veteran has a total schedular rating for major depressive disorder and anxiety disorder. In the Veteran's application for increased compensation based on unemployability (VA-Form 21-8940) received in July 2016, the Veteran reported that he last worked full time in January 2012. See July 2016 Veterans Application for Increased Compensation Based on Unemployability. He stated that he worked in shipping from approximately January 2009 to January 2012. He reported that he currently worked part-time in maintenance since January 2013. In an attached affidavit, the Veteran reported that he had been unable to obtain or maintain substantially gainful employment since 2012. He reported that his manager at his current employment was aware of his service-connected condition and accommodated his condition while he was at work. He reported experiencing anxiety and paranoia almost every day at work as he was easily startled. He indicated that he would get extremely anxious when he was startled, and he often got a headache because his senses were heightened. He also reported that he got anxious when he was at work when he thought about the amount of work that had to get done or when things came up unexpectedly. He reported that he had called out of work numerous times because of his major depression. He reported that he often woke up for work in the morning and could not get motivated to do anything because of his depression. He indicated that although his manager understood his condition, he could not show up at work and do no work, so he had to call out of work during a depressive episode. In a psychological report associated with a December 2014 mental disorders DBQ, the examiner noted the Veteran was in and out of treatment numerous times until his VA treatment in 2010. See October 2011 Medical Treatment Record Non-Government Facility. The Veteran reported that he was currently employed on a part-time basis and found taking care of his stepson a source of meaning and purpose. However, he reported that he continued to struggle with depressive feelings and a sense of isolation which contributed to almost no social contact. The examiner noted the Veteran's inability to sleep more than three to four hours a night, his constant daily fatigue and irritability, his inability to establish and maintain effective relationships, and his paranoid periods that lasted for days. The examiner noted the Veteran had not worked a full-time job since 2007 and has gone through periods of homelessness, losing a series of jobs because of instability and use of alcohol. The examiner acknowledged that the Veteran has been sober since 2010 but noted he has been unable to maintain any substantial level of occupational activity. The December 2014 examiner noted the Veteran's current part-time occupation's income was below the poverty level for a single person and that his continued emotional instability made it impossible for him to secure and follow any form of substantially gainful employment. The examiner noted the Veteran was currently unemployable and that there was no indication of improvement in his psychological condition that would make it likely for him to find such employment in the future. The examiner found that the Veteran's inability to maintain the stability needed for employment and a satisfying life were directly related to the inadequate treatment and diagnosis of his major depression which began during his period of service. In a December 2018 submission, the Veteran's attorney asserted that the Veteran's marginal employment as a maintenance man cannot be construed as substantially gainful, as the Veteran did not make earnings above the poverty threshold. See December 2018 Third Party Correspondence. An April 2021 private employability evaluation found that the Veteran's service-connected major depressive disorder and anxiety disorder precluded his ability to appropriately interact with others, both in occupational and social settings due to his depressed mood, limited motivation, sleep impairment, paranoia, anger and trust issues, difficulty establishing and maintaining interpersonal relationships, difficulty adapting to stressful situations, and inability to concentrate and focus on tasks. It was found that the Veteran's psychiatric symptoms had been distracting to an extent that it would render him off task and unproductive during his workday. The clinician noted the Veteran's work history as working in shipping, packing, and receiving, and also working in a supervisory capacity in that area, as well as in maintenance. It was noted that due to the Veteran's service-connected psychiatric condition, he had trust issues and was suspicious of others. He had difficulty focusing on his work tasks, and as a result, made errors. The clinician noted the Veteran's psychiatric treatment history and found that because the Veteran's former occupations require selective attention, communication, and establishing and maintaining interpersonal relationships, as well as resolving conflicts and negotiating with others, the Veteran's isolative tendences, irritability, and anger would not be tolerated. The clinician also noted that the Veteran did not have a high school diploma or possess any computer skills, which are typically required for a sedentary occupation. The clinician also noted that the Veteran had been unemployable since at least January 2009. The Veteran submitted another VA-Form 21-8940 in May 2021 noting that he became too disabled to work in March 2020 and that he last worked full-time in July 2008. In addition to his service-connected major depression with anxiety disorder, the record shows that the Veteran's employability is also affected by other nonservice-connected disabilities. For instance, a June 2011 VA treatment record noted the Veteran's reports that he had been unemployed since 2003 due to a back injury but that he was back to work in 2010. See July 2011 Medical Treatment Record Government Facility. The Veteran also has asserted that his non-service-connected headaches prevent him from working. In a July 2011 VA examination, the Veteran specifically reported that he was not working because of (non-service connected) headaches. See July 2011 VA Examination. The Veteran reported that he could not remember if he missed work for mental health reasons. A review of Social Security Administration (SSA) treatment records reveal that the Veteran was disabled for SSA purposes due to non-service-connected orthopedic conditions. See November 2016 Medical Treatment Records Furnished SSA. The May 2012 SSA disability determination specifically found that there was no secondary diagnosis established causing the disability. A review of the VA treatment records noted the Veteran had been placed on work restrictions between 2016 and 2017 due to non-service-connected conditions, to include treatment related to cold symptoms, knee issues, shoulder issues, and elbow issues. See February 2016 Medical Treatment Record Government Facility and July 2018 Medical Treatment Record Government Facility. Following each period, the Veteran was deemed able to return to work with no restrictions. Nonetheless, independent of these findings, the Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his major depressive disorder with anxiety disorder. The Veteran noted that he has a high school education and has experience working in shipping and maintenance. SSA records also note a history of working as an assembler, nurse assistant, house repairer, laborer, and cleaner. See Vocational specialist claim communication, p. 13. It was noted that the Veteran had limited education, and no recent training that might lead to direct entry into skilled work. Id. The Veteran reported on his TDIU claim experiencing anxiety and paranoia almost every day at work as he was easily startled. The medical evidence of record also notes the Veteran's inability to sleep more than three to four hours a night, his constant daily fatigue and irritability, his inability to establish and maintain effective relationships, and his paranoid periods that lasted for days. See December 2014 DBQ. Moreover, it was noted on the April 2021 private employability evaluation that the Veteran's psychiatric symptoms had been distracting to an extent that it would render him off task and unproductive during his workday. The clinician noted the Veteran's work history as working in shipping, packing, and receiving, and also working in a supervisory capacity in that area, as well as in maintenance. The clinician noted the Veteran's psychiatric treatment history and found that because the Veteran's former occupations require selective attention, communication, and establishing and maintaining interpersonal relationships, as well as resolving conflicts and negotiating with others, the Veteran's isolative tendences, irritability, and anger would not be tolerated. The clinician also noted that the Veteran did not have a high school diploma or possess any computer skills, which are typically required for a sedentary occupation. Given the forgoing, the Veteran's service-connected major depressive disorder with anxiety disorder precludes him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, a TDIU is warranted. As for the effective date, the issue of entitlement to a TDIU is a component of the claim for an increased rating for his major depressive disorder and anxiety disorder. Thus, entitlement to a TDIU should be considered from July 7, 2008, as is relates to the appeal period for the associated claim for a higher rating for the service-connected psychiatric disorder. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The record is inconsistent as to when the Veteran stopped working on a full-time basis. The Veteran noted on his VA-Form 21-8940 in July 2016 that he last worked full-time in January 2012. He also noted that his current employment was aware of his service-connected condition and accommodated his condition while he was at work. On the December 2014 mental disorders DBQ, it was noted that he last worked full-time in 2007. The most recent vocational assessment in April 2021 notes that the Veteran has been unemployable since at least January 2009. The Veteran noted on a VA-Form 21-8940 dated in May 2021 that he last worked full-time in July 2008 and became too disabled to work in March 2020. Overall, the record shows that while the Veteran continued to work on and off during the appeal, his employment since January 1, 2012 has been marginal. The Veteran noted on his VA-Form 21-8940 in July 2016 that he earned approximately $900 per month during his 40-hour per week job in shipping from January 2009 to January 2012. He also reported earning approximately $800 per month in maintenance working 20 hours per week from January 2013 to July 2016. He noted that the most he ever earned in one year was in 2008, which was when he earned $31,180.13. SSA records show that the Veteran's work in manual labor at a packing and shipping company, which ended on May 2, 2011, earned him $9.20 per hour, 8 hours per day, 5 days per week. As noted, the Veteran submitted another VA-Form 21-8940 in May 2021 noting that he worked from June 2010 to March 2013 in shipping for 40 hours per week, earning $927 per month. He also noted that he worked in maintenance from June 2014 to March 2020 for 20 hours per week and earned $832 per month. The Board notes that the 2011 poverty guideline for one person is $10,890. United States Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs, available at https://aspe.hhs.gov/poverty-guidelines (last accessed June 7, 2021). For 2012, it is $11,170; for 2013, $11,490; for 2014, $11670; for 2015, $11,770; for 2016, $11,880; for 2017, $12,060; for 2018, $12,140; for 2019, $12,490; and for 2020, $12,760. Id. Based on the Veteran's reports above and information from SSA, the Veteran earned approximately $7,360 in 2011 (based on employment from January 1, 2011 to May 2, 2011). However, he also noted on his more recent VA-Form 21-8940 that he earned $927 per month through 2011, which would be $11,124, which is above the poverty guideline for one person. In 2012, the Veteran earned from $10,800 to $11,124; and from 2013 to 2016, he earned from $9,600 to $11,124. The Veteran's attorney also submitted federal tax information showing earnings in 2016 of $11,044; and in 2017 of $10,532. Thus, the Veteran's income from January 1, 2012 to December 31, 2017 did not exceed the poverty guideline for one person. Through March 2020, the Veteran reportedly earned $832 per month (or $9,948 per year), which is below the poverty guideline from 2018 to 2020, as noted above. Therefore, the Veteran's employment during those years can be considered marginal on the basis of the Veteran's earned income. Moreover, there is no indication that from 2020 to present that the Veteran is employed or employed in more than marginal employment. (Continued on the next page) Based on the evidence showing that the Veteran has been rendered unemployable as a result of his service-connected major depressive disorder and anxiety disorder, and the findings from the SSA, federal tax information, and the Veteran's statements that his employment from January 1, 2012 is considered marginal on the basis of the Veteran's earned income, all doubt is resolved in the Veteran's favor that entitlement to a TDIU is warranted, effective January 1, 2012. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.