Citation Nr: 22005166 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 16-34 094 DATE: February 1, 2022 ORDER From September 28, 2009, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The most probative evidence reflects that the Veteran's service-connected disabilities rendered him unable to secure or maintain substantially gainful employment from September 28, 2009. CONCLUSION OF LAW The criteria for a TDIU have been met from September 28, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from March 1970 to May 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in November 2018, at which it was remanded for additional development. The case has now been returned to the Board for further appellate action. TDIU from September 28, 2009 Total disability exists when there is any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned where: (1) the schedular rating is less than total and the Veteran 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 (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and (3) there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. § 4.16 (b). Entitlement to a total rating must be based solely on the impact that service-connected disabilities have on the ability of a Veteran to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361(1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. 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 Analysis The Veteran asserts he is unable to work because of his service-connected disabilities. Service-connection is in effect for adjustment disorder with mixed anxiety and depressed mood, rated 50 percent; and left knee chondromalacia patella, rated 10 percent. Both disabilities are the result of a common etiology. Thus, the Veteran has a disability rating of 60 percent. Therefore, the Veteran meets the schedular criteria for assignment of a TDIU. 38 C.F.R. § 4.16 (a)(2). A review of the record shows the Veteran last worked full-time in the capacity of a welder in the construction industry from January 1989 to June 2004. See March 2021 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran has the equivalent of an eighth-grade education and attended trade school for welding. Review of the competent evidence of record, which includes VA examination reports, SSA records, Veteran's statements, private treatment records and VA treatment records, when taken in total, does suggest that the Veteran is unable to obtain or maintain substantially gainful employment on account of his service- connected disabilities. At the January 2007 VA examination, the examiner noted that the Veteran last work was in 2004 in construction. He cannot do that work now because of impaired vision, back pain, and left lower extremities. He considers himself at disability retirement. The examiner further noted that his working capacity is reduced for multiple problems including decreased vision. Left knee problems limit his ability to do heavy labor or standing work. Comfort level allows sitting for at least two hours and walking is limited to about twenty minutes by left knee pain. At the October 2009 VA examination, the examiner opined that he was unable to determine additional functional limitations without mere speculation. The examiner stated that compounding gonalgic gait with diminished eyesight, it is difficult to imagine the Veteran being able to safely maintain any kind of gainful employment. A June 2010 VA examiner stated that the Veteran is no longer able to work as a welder due to optic neuritis related to interferon. A private September 2011 treatment record shows that Veteran became unemployed due to elbow injury and had to seek employment with less physical stress to arm and knee. An October 2011 VA treatment record indicated that the Veteran had chronic nightmares about preparing for his job. Further, he had to stop welding when his vision changed and has been unemployed with limited income. In following up on a January 19, 2012 VA examination, the January 24, 2012 examiner stated that the Veteran is limited regarding uneven ground and up and downstairs cause the feeling of giving out and anterior knee pain, occasional swelling, that could affect work requiring prolonged ambulation on uneven ground or up and down stairs. A March 2012 VA neurology outpatient note indicated that the Veteran's severe visual impairment disability limits his daily activities and employment as well as chronic but stable mild cognitive difficulty with some short-term memory difficulty. At an October 2013 VA examination, the examiner noted that the Veteran's knee does impact his ability to work. The examiner stated that the Veteran is incapable of function related to laborious or even sitting sedentary tasks. The Social Security Administration (SSA) records did reflect that the Veteran's work was limited by multiple sclerosis, low vision, hepatitis C, right and left arms. It was noted that the Veteran could not see well enough to drive and he could not lift over 20 pounds. The Veteran stopped work because of lack of work, weakness due to hepatitis C and his vision. The Board observes that the Court has held that, determinations by other Federal agencies, such as the SSA, are not binding on the Board. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). At December 2013 VA medical center consultation, the Veteran reported that his left knee feels like it is being stabbed by a hot ice pick. It also appears that the pain attacks previously injured areas in his body like his left knee and appendix. At the March 2016 VA examination, the examiner described the Veteran's adjustment disorder as occupational and social impairment with occasional decrease in work efficiency. The Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss. The examiner indicated that the Veteran experienced a rare side effect of interferon, which led to vision impairment. From this point, he could no longer work. The examiner further noted that pain is another factor that has impacted his ability to work. The Veteran attributes much of his occupational impairment to vision and pain. The examiner stated that mental health factors that could affect occupational functioning is chronic sleep impairment, difficulty concentrating, mild memory loss, and low mood. The Veteran reported chronic nightmares about being unable to work. On the mental status test, the Veteran was oriented to person, place, and time and a reliable reporter of his situation. The VA received a Veteran provided October 2014 Disability Benefits Questionnaire (DBQ) submitted by a private licensed psychologist in July 2016. The examiner described the Veteran's adjustment disorder as occupational and social impairment with deficiencies in most areas. The Veteran has multiple symptoms that include depressed mood, panic attacks, chronic sleep impairment, difficulty in maintaining effective work and social relationships, memory loss, and difficulty in adapting to stressful circumstances like work and/or work like setting. On the mental status examination, the examiner noted that the Veteran endorsed the symptomatology of depression. The Veteran seemed paranoid, suspicious and/or anxious. The psychologist opined, the Veteran cannot sustain the stress from a competitive work environment and cannot be expected to engage in gainful activity due to his depressive disorder. Additionally, the left knee, in turn, continues to manifest as a depressive disorder. The left knee has caused the depressive disorder. There is a causal relationship between medical and psychiatric difficulty. Moreover, individuals with this type of medical issue and depressive disorder debilitation become disabled due to the holistic effect of medical and psychiatric disturbance just like the left knee and secondary depressive disorder endured by the Veteran rendering him incapacitated. Further, psychologist indicated that the Veteran struggles with his permanent and debilitating left knee. In fact, in the VA examination dated October 2013, it is reported that the Veteran's knee flare-ups impact the function of his knee including "any movement and walking is harder, end of the day he is crippled." The psychologist opined that it is her belief that based on the interview and the C-file that the Veteran's left knee is more likely than not aggravating his depressive disorder. The February 2020 VA examiner opined that the Veteran's acquired psychiatric disorder was less likely than not incurred in or caused by active service and or proximately due to or the result of the Veteran's service-connected left knee and/or aggravated by the service-connected left knee. The VA received a Veteran provided Disability Benefits Questionnaire (DBQ) submitted by a private licensed psychologist in November 2020. The psychologist described the Veteran's adjustment disorder as occupational and social impairment with reduced reliability and productivity. The Veteran has multiple symptoms that include depressed mood, panic attacks, chronic sleep impairment, difficulty in maintaining effective work and social relationships, memory loss, and difficulty in adapting to stressful circumstances like work and/or work like setting. The psychologist opined that the Veteran's depression more likely than not began in the service. His mental health symptoms are more likely than not aggravated by his service-connected left knee condition. His depressive symptoms were present and of the same severity from the date of this claim on June 16, 2016, continue uninterrupted to the present, and prevent employment. At an April 2021 VA examination, the examiner described the Veteran's adjustment disorder as occupational and social impairment with reduced reliability and productivity. The Veteran has multiple symptoms that include depressed mood, anxiety, suspiciousness, and mild memory loss. The examiner stated that the Veteran's depressive symptoms can make him need to repeat a job, work more slowly than usual, feel tired at work, have difficulty concentrating and staying focused on his daily tasks. His depressive symptoms can also make it hard for him to remember details and make decisions. His anxious symptoms can cause him difficulty dealing with problems at work. His anxious symptoms can also make it difficult for him to set deadlines, maintaining personal relationships; managing staff; participate in meetings and make presentations. At a September 2021 VA examination, the examiner stated that the Veteran would be limited in occupations that require repetitive motion such as kneeling, squatting, going up and down steps/stairs. In this case, after a consideration of the totality of the evidence, the weight of evidence supports a finding that the Veteran is unable to find substantially gainful employment due to his service-connected disabilities, namely, adjustment disorder with mixed anxiety and depressed mood and left knee chondromalacia. Greater probative weight is afforded to the October 2014 and September 2020 private examinations because they were the result of complete examinations of the Veteran, a thorough review of his medical history, and a consideration of his and his former wife's lay statements. Moreover, the Board notes that the Veteran's chronic left knee pain coupled with depressive symptoms, chronic sleep impairment, panic attacks, disturbances of motivation and mood, and difficulty in stressful worklike setting would severely compromise the Veteran's ability to concentrate and focus on the daily demands of his occupation. The noted service-connected disabilities would make it challenging for the Veteran to be productive in an occupational environment on a consistent basis. Finally, there is no indication from the record that the Veteran would be capable of other forms of employment, as his industrial experience is limited to welding. The record does not show that the Veteran has any readily transferable skills or recent training to seek sedentary employment to include office work or otherwise. In light of the Veteran's occupational background and the functional limitations described above, the Board finds that he is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted from September 28, 2009. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.