Citation Nr: 22017156 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-16 655 DATE: March 24, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1969 to August 1971. In February 2019 and August 2021, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there has been substantial compliance with its prior remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to a TDIU due to service-connected disabilities is granted. The Veteran asserts that he is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992); Floore v. Shinseki, 26 Vet. App. 376, 383 (2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Veteran is service-connected for posttraumatic stress disorder (PTSD) rated as 70 percent disabling from October 1, 2013; for diabetes mellitus, type II rated as 20 percent disabling from March 26, 2018; for degenerative joint disease (DJD) of the left knee rated as 10 percent disabling from February 13, 2012; for DJD of the right knee as 10 percent disabling from February 13, 2012; for hypertension rated as noncompensable from February 13, 2012; and for erectile dysfunction associated with PTSD rated as noncompensable from February 13, 2012. As such, he meets the schedular threshold criteria for consideration of a TDIU. 38 C.F.R. § 4.16 (a). Additionally, upon review of the evidence, the Board finds that the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. Turning to his educational and work experience, the evidence of record indicates that the Veteran completed one year of college, but no subsequent education or training. Regarding his work history, on his VA Form 21-8940, the Veteran indicated that he last worked as a driver and prior to that as a security guard. He further noted that he stopped working as a result of the COVID-19 pandemic as he "is a high-risk individual" due to his service-connected disabilities. The Veteran further stated that he could no longer drive for long hours due to his knees, diabetes, and PTSD. The Veteran's records further note that prior to working as a security guard, the Veteran worked as a material handler for the gas company. Turning to the evidence of record, the Board notes there are various VA examinations and treatment records, which speak to the impact that the Veteran's various service-connected disabilities have on his ability to obtain and sustain meaningful employment. In September 2013 the Veteran underwent a VA PTSD examination with an accompanying disability benefits questionnaire (DBQ). The examiner found that the Veteran did not have a mental health disorder that conformed with the DSM-IV. The examiner did note that the Veteran had chronic pain and stress but as he found that the Veteran did not have a mental health diagnosis, he provided no opinion as to how any of the Veteran's symptoms impacted his ability to work. In May 2017 the Veteran underwent an additional VA PTSD examination with an accompanying DBQ. The examiner found that the Veteran suffered from PTSD and that such caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. In August 2019 the Veteran underwent a VA Hypertension examination with an accompanying DBQ. The examiner noted that the Veteran had a diagnosis of hypertension, but that such did not impact his ability to work. In September 2020 the Veteran underwent another VA PTSD examination with an accompanying DBQ. The examiner confirmed that the Veteran suffered from PTSD and that such caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted that the Veteran struggled being around people and that he lacked trust in others and was suspicious. Therefore, the Veteran stated that he was unable to work or be collaborative. The examiner noted that the Veteran was also short tempered and irritable making communication difficult. The examiner further noted that the Veteran struggled with memory which impacted his ability to learn and retain information. Finally, he found that the Veteran had trouble focusing and he did not manage stress well or handle deadlines or complex tasks. In December 2021 the Veteran underwent an additional VA PTSD examination with an accompanying DBQ. The examiner noted that the Veteran suffered from PTSD as well as depression, but that it was impossible to differentiate what symptoms were attributable to each diagnosis. The examiner found that the Veteran's mental health diagnoses caused him occupational and social impairment with reduced reliability and productivity. In January 2022 the Veteran underwent a VA Male Reproductive Organ Conditions examination with an accompanying DBQ. The examiner noted that the Veteran suffered from erectile dysfunction, and that such impacted his ability to perform any type of occupational task. The examiner noted that the Veteran's condition lowered his quality of life by affecting his self-confidence. In January 2022 the Veteran underwent a VA Diabetes Mellitus examination with an accompanying DBQ. The examiner noted that the Veteran had Diabetes Type II, and that such did impact his ability to work. The examiner found that the Veteran's condition caused frequent urination and constant pain as well as neuropathy in the feet and legs. In January 2022 the Veteran underwent a VA Knee and Lower Leg examination with an accompanying DBQ. The examiner noted that the Veteran suffered from bilateral knee DJD. He also found that such did impact the Veteran's ability to work in that it caused extreme pain and the Veteran could not walk or stand for any length of time. In addition, the Veteran walked with a limp and had to sleep in a recliner. In January 2022 the Veteran underwent another VA Hypertension examination with an accompanying DBQ. The examiner confirmed that the Veteran suffered from hypertension. The examiner also found that the Veteran's condition would impact his ability to work as the Veteran suffered from frequent urination and needed to be close to the bathroom throughout the day and that if the Veteran got overworked his blood pressure would rise and become "too high." Treatment records throughout the appeal indicated that the Veteran suffered from chronic knee pain as well as numbness in his legs and feet. He reported that he could not walk, stand, or sit for long periods. He also reported frequent urination and depression. While most of the VA examiners indicated the Veteran could perform some work, specifically sedentary and/or solitary work, they all indicated that his disabilities would hinder and impact his ability to work and that concessions would be necessary. Furthermore, the Veteran's physical restraints would require various accommodations or entirely prohibit any type of physical labor. Therefore, both sedentary and physical labor appear to be prohibited. Finally, the Veteran does not have the skills or expertise to perform other types of solitary employment. In this regard, he has no additional training and minimal higher education. Therefore, when taking into account the Veteran's educational and work history as well as his various service-connected disabilities which cause both physical and psychological symptoms, the Board finds that the Veteran is not able to maintain the type of employment in which he is experienced. Notably, the question of employability is ultimately a legal one, not a medical one. The evidence, as described and discussed above, clearly shows that the Veteran is not able to maintain the type of employment he is experienced in due solely to his service-connected disabilities. In this regard, the Board finds the opinions of the VA examiners to be highly probative as all of the examiners considered the full evidence of record, including lay statements, and clearly articulated how the Veteran's various service-connected disabilities would individually and collectively hinder physical as well as sedentary and solitary employment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Furthermore, the Board finds that the Veteran's statements are also highly probative as he has provided an extensive account of the impact of his disabilities on his activities of daily living as well as his professional duties. Therefore, considering the totality of the evidence, the Board finds that a TDIU is warranted. Based on the analysis above and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities prevented him from securing or following substantially gainful employment. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, Gilbert, supra. Therefore, entitlement to a TDIU is warranted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.