Citation Nr: 22010599 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 19-12 916 DATE: February 24, 2022 ORDER A total disability rating based on individual unemployability (TDIU) is granted prior to August 27, 2019 and from November 1, 2019 onward. A TDIU from August 27, 2019 to October 31, 2019 is dismissed as moot. FINDINGS OF FACT 1. The Veteran's service-connected posttraumatic stress disorder (PTSD) precludes him from obtaining or maintaining a substantially gainful occupation. 2. The Veteran is in receipt of a 100 percent disability rating for PTSD from August 27, 2019 to October 31, 2019; however, he does not have any additional service-connected disabilities independently ratable at 60 percent or more; therefore, a TDIU from August 27, 2019 to October 31, 2019 is moot. CONCLUSIONS OF LAW 1. The criteria for a TDIU are met prior to August 27, 2019 and from November 1, 2019 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 2. The appeal concerning entitlement to a TDIU from August 27, 2019 to October 31, 2019 is dismissed as moot. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to April 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Milwaukee, Wisconsin. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in October 2021. The transcript of the hearing has been associated with the claims file. Entitlement to a total disability rating based on individual unemployability (TDIU) As an initial matter, the Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate the Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability rating does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In this case, the Veteran does not have any additional service-connected disabilities independently ratable at 60 percent or more from August 27, 2019 to October 31, 2019 (the Board will grant a TDIU based solely on one service-connected disability in this decision, however, this grant does not meet the criteria of an additional service-connected disability independently ratable at 60 percent or more because it is also based on service-connected PTSD); therefore, a grant of a TDIU would not result in entitlement to SMC. Thus, entitlement to a TDIU from August 27, 2019 to October 31, 2019 is moot. Turning to the periods prior to August 27, 2019 and from November 1, 2019 onward, a TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that prior to August 27, 2019 and from November 1, 2019 onward, service connection had been established for PTSD (rated as 70 percent disabling). The Veteran had one disability rated at least 60 percent disabling. 38 C.F.R. § 4.16(a). Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). After reviewing the evidence of record, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD prior to August 27, 2019 and from November 1, 2019 onward. In this regard, the record reflects that the Veteran obtained two associates degrees in Architectural and Technical Design. Since service, the Veteran reported primary employment working as a laborer or in drafting. Regarding his current ability to obtain and maintain substantially gainful employment, the evidence of record includes a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability in which the Veteran reported that he last worked fulltime in 2015 and became too disabled to work due to his service-connected PTSD. Turning to the medical evidence of record, during a May 2017 PTSD examination, the Veteran reported that he was last employed in 2015 and was let go due to his mistakes. He also reported that he was often shuffled from different departments. For example, he endorsed starting in the mill area and having problems looking things up on the computer due to spelling errors. He would subsequently get upset by impatient customers and get moved to the stockroom. While in the stockroom he would reportedly mix up numbers until he was mutually terminated. He suggested that he has not attempted to find other places of work due to becoming defeated given multiple job failures which have resulted in a pessimistic outlook that he will succeed in any occupational setting. The examiner opined that the Veteran's educational history suggests some educational preparedness for vocational pursuits and implies that he should have adequate ability to meet job demands with appropriate accommodations. However, the examiner noted avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event; avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event; persistent, distorted cognitions about the cause or consequences of the traumatic event that lead the individual to blame himself/herself or others; persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame; feelings of detachment or estrangement from others; hypervigilance; and sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). The examiner indicated that such symptoms cause clinically significant distress or impairment in social, occupation, or other important areas of functioning. The examiner also indicated that symptoms related to PTSD include chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work of a worklike setting. The examiner further indicated that a review of the mental health symptomatology demonstrates some complaints that could have relevance for possible vocational limitations in the areas of sleep problems, a learning disability, and PTSD/mood residual symptoms. These issues could create interface or impose work restrictions in jobs which necessitate rigid timelines, high stress, or stringent productivity standards. During a March 2019 PTSD examination, the Veteran reported he was fired from his last job following a conflict with a customer he was unable to help. He reported that he took out a box cutter and threatened to slit the customer like a pig. When he showed up for work the next day, police were there waiting for him. He cleared out his desk and was escorted out of the building and he has not worked since. The Veteran endorsed occasional thoughts of wanting to hurt others but has not acted on it. He also endorsed anxiety, often related to situational triggers; ongoing depression; impulsive behaviors; and difficulty with concentration. The Veteran indicated that he did not think it was safe for him to work because it would be harmful, potentially, to those around him. The examiner opined that the Veteran's social and occupational impairment from his PTSD symptoms was occupational and social impairment with reduced reliability and productivity. The examiner indicated that symptoms related to PTSD included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran testified during the October 2021 Board hearing that his PTSD symptoms including irritability, difficulty concentrating, memory problems, difficulty sleeping, and difficulty getting along with others, continue to impact his ability to obtain and main a substantially gainful occupation. After reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD prior to August 27, 2019 and from November 1, 2019 onward. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working as a laborer or in drafting, positions which require interaction with others and attention to detail. The Board acknowledges that the Veteran reported that he has worked since his last fulltime position in 2015. However, the Board notes that the Veteran repeatedly worked in positions on short term basis and could not maintain employment regularly. Thus, the Board does not consider any such employment to persuasively demonstrate the Veteran's ability to obtain and maintain substantially gainful employment. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.