Citation Nr: 22017433 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-35 668A DATE: March 25, 2022 ORDER 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 22, 2019, is denied. 2. A TDIU from August 22, 2019, is dismissed. FINDING OF FACT 1. The most probative evidence indicates that prior to August 22, 2019, the Veteran's service-connected disabilities did not preclude him from substantially gainful employment. 2. Beginning August 22, 2019, the Veteran has a 100 percent rating for PTSD, and there is no indication that his other service-connected disability prevents him from securing or maintaining substantially gainful employment, nor is it independently rated at 60 percent. The issue is moot. CONCLUSION OF LAW 1. Prior to August 22, 2019, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. Beginning August 22, 2019, the Veteran's claim for entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1975 to November 1977. In October 2018 and October 2021, the Board of Veterans' Appeals remanded this matter for additional development. The October 2021 Board remand also remanded a claim for entitlement to an initial rating in excess of 30 percent a rating in excess of 30 percent for tinea pedis (claimed as fungus of the feet), for additional development. Following a January 2022 Supplemental Statement of the Case (SSOC) the Veteran filed a VA form 10182 Notice of Disagreement in February 2022, and opted that issue into the Appeals Modernization Act (AMA) review system. Therefore, that issue is considered to be withdrawn from his Legacy appeal and will be the subject of a separate Board decision. In October 2021, the Board found that that the appeal period for the claim for an increased rating for posttraumatic stress disorder (PTSD) began November 4, 2014, the date the claim for an increased rating was received. In that decision the Board granted a disability rating of 70 percent for PTSD for the entire appellate period. The rating decision that implement the Board's grant of a 70 percent disability rating for PTSD assigned a later effective of October 08, 2015. Since the Board found that the Veteran's service-connected psychiatric disability warranted a 70 percent rating during the entire appeal period, the correct effective date for that rating is November 4, 2014. Accordingly, this clerical error is referred to the AOJ for corrective action. 38 C.F.R. § 19.9(b). Beyond the above, it is valuable to note that the Veteran is receiving a 100 percent disability since August 22, 2019. 1. Entitlement to a TDIU prior to August 22, 2019 The Veteran contends that his service-connected PTSD prevents him from obtaining gainful employment. Initially the Board notes that prior to August 22, 2019, the Veteran was granted temporary total (100 percent) rating from June 2019 through August 2019, for hospitalization and/or convalescence. As the maximum rating was awarded for the Veteran's was in effect from June 2019 throughout August 2019, entitlement to a TDIU for this period is moot and will not be addressed herein. In order to establish a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person 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 as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, prior to August 22, 2019, service connection was in effect for: PTSD with unspecified depressive disorder, evaluated as 70% disabling; and Tinea pedis, evaluated as 30% disabling. Thus prior to August 22, 2019, the Veteran met the minimum threshold for consideration of a schedular TDIU. Id. The Veteran's educational and occupational background is unclear. In a January 2015 VA Form 21-8940, the Veteran asserted that he became too disabled to work in January 2007. He stated that he could not work with others due to symptoms of anxiety and panic attacks, as well as substance abuse problems. His occupational background included work as a firefighter from June 1987 to July 1989, and from 1999 to September 2007, as a tractor trailer driver. VA treatment records from 2017 to 2019, reflect that the Veteran was employed full time as an addiction counselor until March 2019. The evidence shows that during the pendency of the appeal, the Veteran enrolled in college courses and completed a bachelor's degree in August 2021, providing some evidence against this claim as it indicates an ability to get things done. Pertaining to the service-connected psychiatric disability, on VA examination in November 2014, the Veteran reported that he had not worked since approximately 2007. At that time, he had got a job as a truck driver hoping that the isolation would benefit him and limit opportunities for anxiety and conflict at the workplace. However, he did not cope well with the lack of structure and he was often late with deliveries. The Veteran reported that he felt anxious "all the time" and that he was easily startled by people approaching him unexpectedly. He was often hypervigilant and felt as though he could not relax. He was easily irritated by minor issues and prone to yelling at others, including family members and people in public. He isolated himself most of the time and felt as though very few things in life brought him pleasure. He had panic attacks several times a week. The examiner diagnosed PTSD and panic disorder without agoraphobia and found that it was not possible to differentiate the portion of the occupational and social impairment indicated above that was caused by each mental disorder, as the symptoms of PTSD and panic disorder tended to interact and exacerbate one another. The examiner opined that the Veteran's service-connected psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was afforded a VA examination in July 2015. The emxianer noted symptoms of anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran reported that he was attending college and was able to get a B in one class and an A in another. The examiner found that this meant that he had good academic function despite having symptoms and would suggest ability to have attention, retain and perform with deadlines of the college courses. Panic attacks and PTSD would impact his interpersonal function and the Veteran would likely function better in a setting with less contact with the public and in which he could function independently with autonomy. A factor that that impacted his occupational functioning was his ongoing substance use. The examiner noted the Veteran's extensive history of substance abuse, including alcohol, cocaine and crack cocaine, that had onset at the age of 11. His substance abuse had resulted in job losses and legal charges related, as well as multiple inpatient admissions. The examiner determined that his drug use was not secondary to PTSD. The examiner explained that the use of cocaine as a means to treat symptoms of PTSD was unlikely because the effects of cocaine would cause a higher degree of panic and arousal which was the opposite effect one who sought the reduction of such symptoms should want. The examiner found that the Veteran's service-connected psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. In an unappealed rating decision in October 2015, the AOJ denied service connection for substance abuse as secondary to the service-connected PTSD. The Veteran was provided with a VA examination in September 2017. The examination included two symptom validity screening measures which suggested symptom amplification. As a consequence of these findings, the examiner was unable to accept self-report of symptomatology or functional impairment at face value and therefore did not provide or confirm a diagnosis of a psychiatric disorder. The examiner did note that individuals who present with such a response bias may very well have mental health symptoms that are clinically significant and distressing. While she recognized that the Veteran was currently in treatment, she felt that she could not determine within a reasonable degree of confidence that nature of his mental disorder and the severity of his functional impairment. The Veteran reported that he had volunteered for three months at the VA as a shuttle driver but had stopped volunteering about one month prior to the examination because he could not fit it in and felt that it was a burden. VA medical records reflect ongoing treatment beginning in July 2016. VA treatment records from 2017 to 2019, reflect that the Veteran was employed full time as an addiction counselor. In July 2018, the Veteran also reported being employed in transportation at a local addiction clinic and was a full-time student at a state college. He was pursuing a degree in addiction counselling and was to complete his degree that summer. In May 2019, he reported having been fired in March 2019 for inappropriate behavior. He had been written up in the past for the same issue, and when he repeated the offense he was fired. He indicated that his longest period of paid employment outside the military was as a car salesman for 13 years. Mental status examinations throughout the appeal period reflect that the Veteran was consistently oriented to time, place, and person. He was generally cooperative and maintained eye contact. He presented with good hygiene and grooming. His speech was with regular rate and volume. Thought content was not indicative of delusional thinking and he had no hallucinations upon any examination or treatment. His thoughts were organized and goal directed. He denied ideas of reference, thought blocking, thought insertion, thought withdrawal and showed no evidence of perceptual disturbances or grossly disturbed thought processes. His mood was euthymic and he was not tearful. Mood was congruent with affect with normal range and intensity. His attention, concentration and memory consistently appeared within normal limits. His insight and judgment were sufficient. Concerning the Veteran's service-connected tinea pedis, VA examiners in September 2013, July 2014 and May 2015, determined that the condition had no impact on his ability to work. VA treatment records throughout the appeal are consistent with the VA examination findings. The evidence shows the Veteran was awarded disability benefits from the Social Security Administration (SSA) due to his psychiatric disorder and a non-service connected back disability. Reportedly, he became too disabled to work in March 2000. However, an SSA award is not controlling as to his TDIU claim. SSA benefits are based on different criteria than are VA disability benefits. Moreover, while the Veteran has been found to be disabled by the SSA, it was not based solely on his service-connected PTSD. In sum, the Board finds that prior to August 22, 2019, the Veteran's service-connected disabilities were productive of some occupational limitations, however, the preponderance of the evidence is against finding that his service-connected disabilities either singularly or jointly, precluded the Veteran from gainful employment, and collectively provided evidence against this finding. At worst, his psychiatric disability was shown to have resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The evidence also shows that he had successfully completed a bachelor's degree during the pendency of the appeal, and the July 2015 examiner found that his good academic function was indicative of ability to have attention, retain and perform with deadlines of the college courses. Moreover, the evidence shows that prior to August 22, 2019 the Veteran was capable of periods of full time employment. The objective medical evidence, to include VA examination reports, did not support a finding that the Veteran was precluded from obtaining or maintaining substantially gainful employment. Following repeated examinations, the evidence in this case provides highly probative evidence against this claim. The examiners addressed the question of employability directly and their opinions are internally consistent. The Veteran's VA treatment records do not contradict the VA examination reports described above, only support it. In determining employability, the Veteran's level of education, special training, and previous work experience is for consideration. The Board is not persuaded that given the Veteran's level of education and previous work experience, his disabilities rendered him unemployable prior to August 22, 2019. While the Veteran is competent to report symptoms he experiences, an opinion as to the limitations on gainful employment due to his service-connected disabilities is beyond his medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, any such lay statements regarding him being unable to work are not competent or sufficient. It is noteworthy that the Veteran's subjective complaints have been called into question by the September 2017 VA examiner. Simply stated, both the best factual evidence, including occupational history reported by the Veteran, and the best medical evidence, in the form of the examinations cited above, provides evidence against this claim. In this regard, it is important for the Veteran to understand that not all evidence in this case supports the current findings, let alone more compensation with an earlier effective date. The medical evidence clearly indicates a problem with drug abuse and a back problem which, as noted above, are not related to service. The Board observes that the disability ratings assigned prior to August 22, 2019, recognize that the impairment due to his service-connected disabilities made it difficult to obtain and keep employment (that the Veteran had problems is not in dispute). However, the ultimate question in determining entitlement to a TDIU is whether the Veteran was capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363. If the Veteran did not have problems with his service-connected disabilities, there would be no basis for the combined disability ratings of 80 percent prior to August 22, 2019 (which, it is important for the Veteran to understand, will cause him many problems). In this case, there is no indication from the record that prior to August 22, 2019, the Veteran was unable to obtain and maintain substantially gainful employment solely as a result of his service-connected disabilities, either singularly or jointly. As the preponderance of the evidence is against the claim for entitlement to a TDIU prior to August 22, 2019, the benefit of the doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a TDIU from August 22, 2019 From August 22, 2019, the Veteran is in receipt of 100 percent disability rating for the psychiatric disorder. A TDIU is considered a lesser benefit than the 100 percent rating, and the award of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or greater may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran is not seeking SMC at the housebound rate, and the record does not otherwise reasonably raise that matter. The Veteran's attorney has not raised this issue. The evidence does not show that the Veteran's tinea pedis disability that alone, without consideration of his PTSD, prevents him from obtaining and maintaining gainful employment. Further, as the Veteran's other service-connected disability is not independently ratable at 60 percent, a grant of a TDIU would not result in an award of SMC. See id. The issue is moot. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.