Citation Nr: 21041407 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-29 907 DATE: July 9, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT For the entire appeal period, the Veteran was unable to obtain and retain employment, consistent with his educational and vocational experience, due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.16 (a), 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from August 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in May 2021. A transcript of the proceeding is of record. 1. Entitlement to a TDIU The Veteran contends that he is unable to work as a result of his service-connected disabilities. TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). There is a procedural distinction in the adjudication of TDIU claims based upon whether the criteria for schedular consideration are met under 38 C.F.R. § 4.16(a), or whether the claim must be review on an extraschedular basis under 38 C.F.R. § 4.16(b). TDIU may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of one disability rated as 60 percent in 4.16(a), disabilities of one or both lower extremities, including the bilateral factor if applicable, will be considered as one disability. 38 C.F.R. § 4.16(a)(1). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). The effects of medications, if any, are relevant. Mingo v. Derwinski, 2 Vet. App. 51 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (CAVC) discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. However, to receive TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of 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 and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity.) The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Although VA fully must consider "the effect of combinations of disability" under 38 C.F.R. § 4.15, regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). The claim for TDIU was filed in August 2016. The Veteran's current service-connected disabilities include: posttraumatic stress disorder (PTSD) with major depressive episode rated as 70 percent disabling since July 29, 2016; coronary artery disease, with bypass surgery (CABG) rated as 30 percent disabling since July 29, 2016; and ischemic heart disease, status post three vessel coronary bypass surgery rated as noncompensable since July 29, 2016. His combined service-connected schedular rating is 80 percent from July 29, 2016. Thus, he met the criteria for eligibility for schedular consideration of TDIU since July 29, 2016. 38 C.F.R. § 4.16 (a) The record reflects that the Veteran's last date of employment was April 2010, as a library assistant. However, the Veteran was released from his position due to a reduction in the workforce. Prior to his last position, the Veteran worked as a salesclerk and a manager of a retail store. Further, the record reflects that the Veteran has a high school diploma and attended college for 3 years. The Veteran asserts that following his August 2010 triple bypass, his service-connected disabilities have prevented him from engaging in substantial gainful employment. In connection with this claim, the Veteran was provided VA examinations in September 2016 and May 2018 determine the effect of the Veteran's service-connected disabilities on his ability to function in an occupational environment. In September 2016, a VA examination was conducted to determine the present severity of the Veteran's service-connected PTSD and CABG, as well as the effect they have on his ability to function in an occupational environment. Regarding the Veteran's service-connected PTSD, a VA examiner determined that the Veteran's mood symptoms, poor sleep hygiene, and problematic self-regulation may create some problems navigating social interactions in a traditional work environment. The examiner explained that the Veteran reported difficulties due to problems with motivation and anxiety, which can adversely affect work activities of a sedentary nature. However, the examiner opined that in a controlled environment, like the evaluation setting, the Veteran demonstrated the ability for understanding, memory, concentration, persistence, social interactions, and adapting to specific situational variations, including and conforming to the evaluation standards. And a work environment that can tolerate unique social, communication, and behavioral characteristics will be most conducive to the claimant's emotional and neurocognitive quality of life at this time. Lastly, the examiner noted that any future work setting would need to provide structure, guidance, and have a low expectation for working well with others and working a full work week would more than likely be more conducive to the Veteran's chronic psychiatric related vulnerabilities. Additionally, regarding the Veteran's service-connected CABG, a separate VA examiner determined that the Veteran's heart condition causes the Veteran to fatigue easily, which effects his ability to work. In May 2018, the Veteran was again provided VA examinations to determine the effect his service-connected PTSD and CABG have on his ability to function in an occupational environment. Dr. J.S., a psychologist, determined that the Veteran's PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. During the examination, the Veteran reported his symptoms have worsened in the past couple of years, and he is more anxious and irritable, especially when he leaves the house. Also, Dr. J.S. noted that the Veteran's symptoms include: depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. Additionally, regarding the Veteran's service-connected CABG, a VA examiner determined that the Veteran will likely experience enhanced fatigue, decreased endurance, shortness of breath, and difficulty breathing with any vigorous exertion, which will significantly reduce the Veteran's ability to perform tasks. During May 2021 Board hearing, the Veteran's wife testified to the Veteran's current disabilities and their effects on his ability to work. The Veteran's wife noted that following his August 2010 triple bypass, the Veteran experienced stamina issues, and his PTSD symptoms "went into overdrive." Further, she stated that the Veteran could not work an 8-hour day. The Veteran's post-surgery treatment records and lay statements consist of complaints and treatment for the above-mentioned symptoms related to his service-connected disabilities. Upon review of the evidence of record and after resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities prevent him from securing substantial gainful employment and a schedular TDIU is warranted. The record demonstrates that prior to his August 2010 triple bypass, the Veteran was able to work as a library aid or in a retail environment. However, following the procedure, the Veteran has experienced constant stamina issues, and his PTSD symptoms became exacerbated, resulting in a 70 percent disability rating. Presently, the Veteran's PTSD symptoms include: disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. The Board finds there is a significant amount of probative evidence that the Veteran's service-connected disabilities result in a level of functional impairment that would affect any employment. Specifically, Dr. J.S.'s medical opinion, where she determined that the Veteran's PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. And the September 2016 VA examination, where it was concluded that the Veteran could only work in a "protected environment." See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) (the Board observes that the earning of income above the poverty limit does not preclude entitlement to TDIU if the claimant is marginally employed in a "protected environment.") The Board recognizes that the applicable statutory and regulatory provisions "place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). However, opinions provided in the Dr. J.S.'s VA medical opinion and the September 2016 VA examination hold substantial weight as these professionals are trained to evaluate disabilities and how they impact an individual's ability to move and work. Given the substantial medical and lay evidence supporting the finding that the Veteran experiences fatigue, decreased endurance, shortness of breath, and PTSD related occupational and social impairment, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an schedular grant of TDIU for his service-connected disabilities. The evidence is at least approximately evenly balanced as to whether the Veteran has been unable to follow a substantially gainful occupation as a result of service-connected disabilities. By law, the doubt resulting from this equipoise in the evidence is resolved in favor of the Veteran. See 38 U.S.C. § 5107(b). The Board will therefore grant schedular TDIU. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). ("By requiring only an 'approximate balance of positive and negative evidence'. . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.