Citation Nr: 21041334 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-01 095 DATE: July 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to May 17, 2016, due to service-connected disabilities is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, prior to May 17, 2016, his service-connected disabilities have precluded him from securing or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU prior to May 17, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1985 to April 1988 and from June 1988 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in November 2017 to the agency of original jurisdiction (AOJ) for further development. A July 2019 rating decision granted entitlement to a TDIU effective May 17, 2016. However, as such did not constitute a full grant of the benefit sought on appeal, the issues as set forth above remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The Board denied the claim in its June 2020 decision. The Veteran subsequently appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 granted Joint Motion for Remand, the Court vacated and remanded the issue back to the Board for an action consistent with the terms of the Joint Motion. Entitlement to a TDIU prior to May 17, 2016. In relevant part, on June 9, 2014, VA received the Veteran's claim seeking an increased rating in excess of 70 percent for PTSD. In part, by July 2019 rating decision, the RO granted entitlement to TDIU, effective May 17, 2016, which was the earliest date the RO found the Veteran to be totally occupationally and socially impaired due to service-connected disabilities. However, the Veteran's TDIU claim remains on appeal because TDIU has not been awarded back to the effective date of the entire period on appeal for the underlying PTSD increased rating claim. Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran asserts that prior to May 17, 2016 his service-connected disabilities have rendered him unemployable. For the reasons that follow, resolving all reasonable doubt in favor of the Veteran, the Board finds that prior to May 17, 2016, the Veteran's service-connected disabilities rendered him unable to obtain or maintain a substantially gainful occupation. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); also see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Additionally, entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). Thus, in adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The phrase "unable to secure and follow a substantially gainful occupation" in 4.16 has both an economic and a noneconomic component. Ray, supra. The economic component means an occupation earning more than marginal income outside of a protected environment. Id. The noneconomic component concerns whether the Veteran is able to "secure or follow" gainful employment. Id. In determining whether a Veteran can secure and follow a substantially gainful occupation, in addition to the Veteran's history, education, skill, and training, the Board should consider whether he or she "has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required" to work in a substantially gainful occupation, and "whether the Veteran has the mental ability to perform the activities required" to work in a substantially gainful occupation. Id. "Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity." Id. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran 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, this disability shall be ratable at 60 percent or more; 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. 38 C.F.R. § 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Prior to May 17, 2016, the Veteran was service-connected for: (1) posttraumatic stress disorder (PTSD), rated at 30 percent from September 28, 2007 and 70 percent from March 28, 2012; and (2) tinnitus, rated at 10 percent from June 9, 2014. In relevant part, the Veteran's combined evaluation prior to May 17, 2016 was 30 percent from September 2007 and 70 percent from March 28, 2012. Thus, during the applicable period prior to May 17, 2016, the schedular criteria for a TDIU are met. Accordingly, the Board will focus its analysis on whether the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. Turning to the evidence of record, the Veteran's military occupational specialty (MOS) was an Automated Logistical Specialist. See DD Form 214. The Veteran primarily worked in manufacturing since his separation from active service. See VA treatment records. He also briefly worked at a restaurant. With regards to the Veteran's education level, his education includes a high school diploma. Based on the foregoing, the Board finds that the Veteran has a limited proficiency to work in an office-like setting, performing administrative or clerical work. As to the Veteran's contentions, he asserts that prior to May 17, 2016, his service-connected disabilities rendered him unemployable. See September 2017 VA Form 21-8940 (VA 21-8940). Specifically, he asserts that his PTSD and tinnitus symptoms prevented him from working. The Veteran underwent a VA examination for his PTSD in July 2012. At that time, the Veteran reported being unemployed. He reported that he was fired from a company where he had worked for four years, due to his chronic tardiness. On examination, the examiner attributed the following symptoms to the Veteran's PTSD: anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. The examiner concluded that the Veteran has significant and substantial functional decrements due to the effects of his PTSD, self-medicated with alcohol. However, the examiner noted that his symptoms are not so severe as to render him unemployable. The Veteran underwent another VA examination for his PTSD in September 2014. At the examination, the Veteran reported working in manufacturing and quitting his job because he was about to be fired. He reported not being able to concentrate, reporting late and forgetting his arrival time. The Veteran reported living with his girlfriend and her two children. He reported doing activities with his girlfriend's children and taking care of them while she is working. The Veteran also reported a recent episode when he lost his temper and threw a plate, which makes his girlfriend's children afraid of him at times. He also reported issues with his memory and experiencing panic attacks in crowds. On examination, the examiner attributed the following symptoms to the Veteran's PTSD: anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long-term memory, impaired judgement, disturbance of motivation and mood, difficulty adapting to stressful situations, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence, and neglect of person appearance and hygiene. The examiner concluded that the Veteran's PTSD symptoms result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking and/or mood. With regards to the Veteran's service-connected tinnitus, he underwent a VA examination in September 2014. The Veteran reported experiencing bilateral tinnitus a couple of times a week, lasting a few minutes. As to the functional impact, the examiner noted that the Veteran's tinnitus impacts his ordinary conditions of daily life, including work because it affects his hearing. A review of the Veteran's treatment records shows that during the appeal period he briefly worked at a restaurant, but he reported that his emotional responses made it difficult being around people consistently. See September 2014 VA treatment record. His mood was dysphoric and irritable. The evidence of record also includes a May 2016 private opinion by Dr. R.W., who attributed the following symptoms to the Veteran's PTSD: intermittent explosive anger outbursts, severely depressed mood and lack of motivation, intense anxiety episodes, 4-5 panic attacks weekly, chronic sleep impairment, unprovoked irritability with periods of violent behavior, poor impulse control, homicidal ideation, inability to adapt to stressful situations, dissociative flashbacks, hypervigilance, intrusive trauma, memory deficits, concentration problems, inability to establish or maintain healthy intimate, social or work relationships. Dr R. W. concluded that the Veteran's symptoms are severe enough to preclude him from sustaining any substantial, gainful employment. Based on a review of the record, and resolving doubt in the Veteran's favor, the Board finds that prior to May 17, 2016 the Veteran's service-connected disabilities precluded him from securing and maintaining substantially gainful employment, consistent with his education and work experience. The Veteran's previous work history includes only work in manufacturing and at a restaurant. Prior to May 17, 2016, the Veteran's PTSD impaired his ability to perform in stressful work-like situations. His impulsive anger, extreme anxiety and frequent panic attacks impaired his ability to perform his occupational tasks. While neither July 2012 nor September 2014 VA examiner found the Veteran totally disabled as to render him unemployable, Dr. R.W. found that the Veteran's PTSD symptoms alone preclude him from sustaining and maintaining any gainful employment. Further, during the appeal period, the Veteran had issues with his memory, concentration, ability to handle workplace stress, crowds, and demonstrate reliability and productivity. In addition, the September 2014 VA examiner found that the Veteran's tinnitus impacts his ordinary conditions of daily life, including work because it affects his hearing. In light of the foregoing, the lay and medical evidence is at least in equipoise on the question of whether the Veteran's combined service-connected disabilities have rendered him totally unemployable for purposes of individual unemployability benefits prior to May 17, 2016. As such, the benefit of the doubt rule applies. Entitlement to a TDIU prior to May 17, 2016 is warranted. 38 U.S.C. § 5107(b); Gilbert, supra. The appeal is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.