Citation Nr: 22010512 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 15-22 835A DATE: February 23, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from March 28, 2012 to December 19, 2014 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 28, 2012 is denied. FINDINGS OF FACT 1. From March 28, 2012 to December 19, 2014, the evidence of record is at least in relative equipoise that the Veteran's service-connected PTSD rendered him unemployable. 2. The evidence of record does not show the Veteran was rendered unemployable by his service-connected disabilities prior to March 28, 2012. CONCLUSIONS OF LAW 1. The criteria for a total disability rating based on individual unemployability (TDIU) from March 28, 2012 to December 19, 2014 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. 2. The criteria for a total disability rating based on individual unemployability (TDIU) prior to March 28, 2012 have not been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1970 to June 1974. In January 2019, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The claim was brought before the Board in June 2019 and September 2021 and was remanded for further development. Entitlement to TDIU The Veteran contends that he is unemployable due to his service-connected disability. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, or if there are two or more disabilities, there shall be at least one 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). However, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. 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 v. Brown, 4 Vet. App. at 363 (1993). Here, prior to December 19, 2014, the Veteran is service-connected for posttraumatic stress disorder (PTSD) rated as 50 percent disabling and pseudofolliculitis barbae rated as non-compensable. Therefore, the Veteran does not meet the schedular criteria of a combined rating of at least 70 percent. However, the Board notes that the appeal has already been referred to the Director of Compensation for extraschedular consideration and thus, the Board may continue with review of the appeal. The Veteran's occupational history has primarily consisted of working as a hospital radiation therapy technician. He also reported attending 1 year college and a trade school for radiation therapy. In May 2011, the Veteran attended a VA examination. The Veteran was clean and casually dressed, his speech was clear, his psychomotor activity was unremarkable, and his affect was appropriate. The Veteran's mood was good, and his attention was intact. The Veteran was oriented to person, place, and time. His thought process and content were unremarkable. He did not have delusions and understood the outcome of behavior. His intelligence was average. He did not report any hallucinations. He didn't report inappropriate behavior. He did not have obsessive or ritualistic behavior or report panic attacks. He denied any homicidal or suicidal ideation. His impulse control was fair, and he had no episodes of violence. He was able to maintain minimum personal hygiene and has no problems with activities of daily living. His memory was normal. The Veteran did have recurrent and intrusive thoughts and efforts to avoid thoughts, feelings, or conversations of trauma. He reported difficulty falling or staying asleep and difficulty concentrating. The symptoms were noted as chronic and the severity can be weekly, moderate, and duration varies over time and with exposure to different stimuli. He also reported increased anxiety when stressed. The Veteran was noted as being capable of handling his financial affairs. The Veteran reported ongoing bouts of anxiety and adjusting to his new life in Florida. He reported a good response to treatment and his provider and coping with health problems. He reported trying to maintain good leisure and stress management activities. The Veteran further reported that he last worked in February 2009 and stated he stopped working due to his chronic obstructive pulmonary disease (COPD). The Veteran submitted a PTSD questionnaire from his VA psychiatrist dated March 2012. The Veteran was noted as being mildly limited in the ability to remember locations and work-like procedures, ability to perform activities within a schedule, maintain regular attendance and be punctual, ability to accept instructions and respond appropriately to criticism, ability to get along with co-workers or peers without distracting them or exhibiting behavioral extreme, ability to be aware of normal hazards, ability to travel to unfamiliar places, and ability to set realistic goals or make plans independently. The Veteran was also moderately limited in the ability to maintain attention and concentration for long periods, ability to sustain ordinary routine without supervision, ability to maintain socially appropriate behavior and to adhere to basic standards of neatness, and ability to respond appropriately to changes in the work setting. The Veteran was markedly limited in ability to complete a normal work week without interruptions from psycho-logically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods and ability to interact appropriately with the general public. The psychiatrist then opined that in their medical opinion, the Veteran would not be capable of performing full time competitive work with his psychological symptoms and limitations. Upon review of the evidence of record, the Board finds that the Veteran's PTSD would limit the occupational work the Veteran could perform from March 28, 2012. The Veteran's PTSD would make it difficult for him to obtain gainful employment in his past occupation, as working as a hospital radiation technician requires frequent interaction with others, as well as requires a high-level of attention and focus. Moreover, the Veteran would also have issues in most employment settings, as he has problems with stressful circumstances, hypervigilance, and sleep deprivation, which could affect his critical judgment and concentration. Lastly, as noted above, the Veteran's VA psychiatrist in March 2012 opined that the Veteran would be incapable of performing full time competitive work. However, the Board finds that prior to March 28, 2012, the Veteran's service-connected disability does not render him unemployable. In the Veteran's May 2011 examination, the Veteran reported he stopped working due to his COPD. He was also noted as having clear speech, his psychomotor activity was unremarkable, and his affect was appropriate. He further did not have any delusions or hallucinations, and did not report any inappropriate behavior. He had fair impulse control and average intelligence. While the Veteran did report an increase in anxiety and issues with concentration, the Veteran was noted as having no problems with activities of daily living and maintaining his personal hygiene. He also was found capable of handling his financial affairs and reported having a good response to treatment, coping with his health problems, as well as maintaining stress management activities. Thus, the evidence does not show he would be unable to handle the responsibilities of employment during this period. Accordingly, the Board concludes that the majority evidence of record shows the Veteran was rendered unable to obtain and maintain gainful employment due to his service-connected PTSD from March 28, 2012 to December 19, 2014, and a grant of TDIU is warranted. However, the majority evidence of record does not show the Veteran was unable to obtain and maintain gainful employment due to his service-connected PTSD prior to March 28, 2012. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron 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.