Citation Nr: 22018497 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-58 612 DATE: March 29, 2022 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted, effective from March 12, 2016, to May 8, 2018. The appeal concerning entitlement to service connection for a cervical spine disability has been withdrawn and is therefore dismissed. The appeal concerning entitlement to service connection for left upper extremity neuropathy has been withdrawn and is therefore dismissed. The appeal concerning entitlement to service connection for a gastrointestinal disorder has been withdrawn and is therefore dismissed. FINDINGS OF FACT 1. From March 12, 2016, to May 8, 2018, the Veteran's service-connected disabilities have, as likely as not, precluded him from maintaining substantially gainful employment consistent with his education and work history. 2. On August 17, 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's representative that a withdrawal of the issue of service connection for a cervical spine disability is requested. 3. On August 17, 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's representative that a withdrawal of the issue of service connection for a left upper extremity neuropathy disability is requested. 4. On August 17, 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's representative that a withdrawal of the issue of service connection for a gastrointestinal disorder is requested. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU from March 12, 2016 to May 8, 2018, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2021). 2. The criteria for withdrawal of an appeal concerning entitlement to service connection for a cervical spine disability by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). 3. The criteria for withdrawal of an appeal concerning entitlement to service connection for a left upper extremity neuropathy disability by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). 4. The criteria for withdrawal of an appeal concerning entitlement to service connection for a gastrointestinal disorder by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board remanded the issues on appeal for additional development in May 2019. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). This appeal was originally certified to the Board with the additional issues of entitlement to service connection for erectile dysfunction and sleep apnea. However, in April 2020 and June 2020 rating decisions, the RO granted entitlement to service connection for erectile dysfunction and sleep apnea, respectively. As such, those service connection issues are no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). TDIU A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in 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, 168 (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 degree in education and his part-time work as a tutor). 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 a veteran can find employment. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. However, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.10. In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims (Court) has indicated that, in essence, the unemployability question, that is, the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 83 (1991). The VA General Counsel has concluded that VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated as totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also held that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991). As noted above, in determining whether the veteran is entitled to individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, in deciding the claim, the Board may not favorably consider the effects of the non-service-connected disabilities with respect to their degree of interference with his employability. Indeed, the Court stated that in order for a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Schedular TDIU The Veteran's September 2014 initial TDIU claim was denied in a March 2015 rating decision, at a time where the Veteran was service connected for posttraumatic stress disorder (PTSD) with a disability rating of 50 percent, and for tinnitus with a disability rating of 10 percent, for a combined 60 percent. The RO denied that initial claim, even though the Veteran had provided a statement that his service-connected PTSD prevented him from working, largely because the Veteran did not meet schedular eligibility criteria at the time of his initial adjudication. A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran is currently service-connected for his PTSD with a 70 percent rating from March 12, 2016, and a 100 percent rating from May 8, 2018; sleep apnea with a 50 percent rating from June 20, 2016, tinnitus with a 10 percent rating from June 26, 2013; a left ankle fracture with a 10 percent rating from September 1, 2016, and a noncompensable rating for erectile dysfunction. The Veteran has had a cumulative total 70 percent rating from multiple disabilities since March 12, 2016; a 90 percent rating from June 20, 2016, and a 100 percent rating from May 8, 2018. The Veteran had at least a minimum total 70 percent combined rating with a single disability at 40 percent or greater, since March 12, 2016, and he therefore met the threshold percentage requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a), effective from that date. Accordingly, the only remaining question is whether the Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and work history from that date or a more recent date based on the medical evidence associated with his service-connected disabilities. Based on the medical and other factual evidence, the Board will find the Veteran warrants a TDIU effective from March 12, 2016 to May 8, 2018. In addition, in some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). The Board notes that the Veteran has a combined 100 percent schedular rating effective from May 8, 2018, and the RO considered the possibility of TDIU after that date to be moot in earlier rating decisions. VA regulations allow for benefits in addition to a 100 percent rating in certain circumstances. Most frequently, special monthly compensation (SMC) is available for an appellant with a single service-connected disability rated at 100 percent and additional, separate, disabilities independently ratable at 60 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Here, the Veteran was awarded SMC housebound, effective from May 8, 2018, in a June 2020 rating decision on account of his 100 percent PTSD rating and additional service-connected disability of sleep apnea, erectile dysfunction, residuals of left ankle chip fracture, and tinnitus, interpedently ratable at 60 percent of more from May 8, 2018. Therefore, with the Veteran having been awarded SMC housebound in addition to his 100 percent rating for his PTSD, both effective from May 8, 2018, the Board is granting the earlier period of TDIU from March 12, 2016, to May 8, 2018, and the Veteran is not prejudiced by the end limit date of the TDIU award in this Board decision. See Bradley v. Peake, 22 Vet. App. 280 (2008); see also AB v. Brown, 6 Vet. App. 35, 38 (1993) (presuming that a claimant is seeking the maximum benefits allowed by law and regulation); 38 C.F.R. § 3.103(a) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law.") Evidence and Analysis The Veteran provided a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in March 2016. The Veteran reported he worked as a machinist after leaving the service in October 2003, and worked there until June 2013, leaving because of his psychiatric problems. He reported that he was a high school graduate with one year of college, and no other specialized education or training. Social Security medical records provided to the claims file in April 2016 indicate that the Veteran has been awarded Social Security disability based on an April 2015 decision based on a primary diagnosis of anxiety disorder, effective from June 11, 2013. The decision summary included statements about the Veteran that he is limited in interacting consistently and appropriately with the public, in getting along with coworkers, and accepting instruction and criticism from supervisors. He was considered moderately limited in carrying out detailed and complex instructions, in maintaining concentration for those tasks, and adapting to significant changes in a work routine or setting. This examiner noted the Veteran's productivity for even unskilled tasks would be only about 75 percent of the average productivity of an average worked. The record from Social Security continued, noting the Veteran's deficits in concentration, persistence, and pace are adversely affected by the Veteran's diagnosed PTSD. Side effects from the medications, his mental impairment, and pain levels limit the Veteran to simple, routine, and repetitive tasks and ultimately cause him to work at a reduced pace even at unskilled work. The examiner continued, noting that the Veteran's work experience ended because of the onset of his impairments, primarily his psychiatric ones. The Veteran received a VA examination for his PTSD in October 2016. The examiner noted the Veteran's symptoms were getting worse in that he was becoming more agoraphobic, does not keep up with his personal hygiene, and is frequently anxious. This examiner noted the Veteran's occupational and social impairment as with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. A friend of the Veteran, O.M., provided a buddy lay statement in February 2018. He had served with the Veteran and after service, employed the Veteran in 2007-08. At one point, he also lived with the Veteran during that period. He noted the Veteran had constant headaches that interfered with his work as a machinist and that created stress and anxiety in the Veteran, to the point where the Veteran often had to leave work early. He also noted the Veteran had substantial mood swings with irritability if things were not going the Veteran's way. The Veteran also went to great lengths to avoid public spaces and/or mixing with strangers. Also in February 2018, the Veteran's brother provided a lay statement where he noted the Veteran's substantial depression and how it's been worsening over time. He also noted the Veteran's personal hygiene has been declining and his anxiety has worsened to the point where he won't leave his home. The Veteran's sister provided a lay statement in March 2018. She reported that her brother, the Veteran, had suffered from depression for many years and he is extremely unstable and very irritable. He is unable to complete tasks or projects because his concentration is lacking all the time. She noted her brother's lack of personal hygiene and expressed concerns about suicidal ideation. The Veteran received a private psychological evaluation from Dr. H.H.G. in May 2018. This examiner noted the Veteran's diagnosis of PTSD and reviewed the Veteran's history with this disability. The examiner considered the Veteran's psychological symptoms to be worsening, with increased inability to retain short term and long term memories, with a self-report of hallucinations. The examiner noted near-continuous panic or depression affecting his ability to function effectively, disturbances of motivation and mood, sense of a foreshortened future, chronic sleep impairment, difficulty concentrating, irritability, difficulty establishing and maintaining relationships, difficulty adapting to stressful circumstances, impaired impulse control, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. During the interview, the Veteran was casually dressed with malodorous hygiene, and while speech was fluent and cooperative, the examiner noted dysphoric affect, anxiousness, and incongruent mood. Earlier passive suicidal ideation was noted. Beck inventories for each anxiety and depression reported severe levels of anxiety and severe levels of depression. This examiner also noted the Veteran's near continuous depression and near continuous panic greatly affect the Veteran's ability to function independently, appropriately, and effectively. This examiner opined that the Veteran is likely unable to function in a competitive work environment or be expected to engage in any gainful activity, to include regular employment. The examiner noted a sense of paranoia with regard to any personal relationships, to include his own family members. The physical signs of depression would likely interfere with daily workplace challenges, and his previous history of workplace relationship problems, distractibility, absenteeism, and emotional turmoil make his ability to gain and hold suitable employment such that he could earn his own living is highly unlikely given his symptoms of his PTSD. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted, effective from March 12, 2016, to May 8, 2018. After considering all of the evidence of record, including the Veteran's statements and all medical evidence and opinions, the Board finds that the evidence shows that the functional limitations imposed by the Veteran's service-connected disabilities preclude his performance of substantially gainful employment for the period beginning from March 12, 2016, the effective day of the Veteran's PTSD 70 percent evaluation and the earliest schedular eligibility date. The Board notes the Veteran's PTSD was service connected before that date at lower ratings when symptoms were less severe, and finds that did not preclude gainful employment prior to March 12, 2016. The Board finds that only after the establishment of service connection for the Veteran's PTSD 70 percent rating effective March 12, 2016, did the Veteran's ability to gain and maintain gainful employment become so diminished as to warrant the award of a TDIU. In reaching this determination, the Board notes that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 77 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds all of the VA and private examination reports discussed to be of great probative value, especially as they show over time the worsening of the Veteran's service-connected disabilities and their relationship to Veteran's ability to gain and maintain suitable employment. Indeed, the pertinent examiners considered the Veteran's contention, the claims file, and clinical medical evidence before providing opinions and assessments of the Veteran's disabilities and their functional impacts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners' opinions, both VA and private, were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). In this case, the Board finds that the weight of the evidence, lay and medical, demonstrates that the functional and occupational impairment caused by the service-connected PTSD with its symptoms would preclude the ability to secure or follow substantially gainful employment from March 12, 2016. The Board finds it significant and persuasive that the Veteran has severe psychiatric symptoms of forgetting names, unprovoked irritability with periods of violence, suspiciousness, depressed mood, near-continuous depression affecting the ability to function independently, appropriately, and effectively, disturbances of motivation and mood, memory loss, forgetting recent events, impaired impulse control, near-continuous panic affecting the ability to function independently, appropriately, and effectively, difficulty in adapting to stressful circumstances, difficulty in adapting to work, difficulty in adapting to a worklike setting, anxiety, difficulty in establishing and maintaining effective work and social relationships, and forgetting directions, and that all of these symptoms result in unemployability. The effects of the PTSD establish the Veteran is unable to gain and maintain suitable employment based on his education and work history. The Veteran only graduated from high school, and has only worked as a machinist where his psychological symptoms now inhibit his ability to gain and maintain suitable employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Thus, given the evidence regarding the frequency and severity of the symptoms and impairment caused by the Veteran's service-connected psychological disabilities, and opinions and evidence indicating the Veteran's functional limitations due to his service-connected disabilities, and in light of his individual work experience, limited training, and limited education, the Board finds that the evidence supports the Veteran's claim, and he is entitled to an award of a TDIU from March 12, 2016, the effective date of the Veteran's 70 percent rating for his PTSD disabilities, to May 8, 2018, when his 100 percent PTSD rating and his SMC housebound award take effect. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the forgoing, the Veteran has met the threshold for qualification for a TDIU from March 12, 2016, to May 8, 2018. Moreover, the Board finds that he is unemployable due to his service-connected PTSD disabilities, and entitlement to a TDIU is warranted. The Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran had filed claims for entitlement to service connection for a cervical spine disability, an upper left extremity neuropathy disability, and a gastrointestinal disorder. On August 17, 2020, the Veteran's representative submitted a written statement that the Veteran wished to withdraw those three service connection claims, and that this Board appeal would focus on the TDIU claim, already discussed above. (CONTINUED ON NEXT PAGE) The Veteran has withdrawn this appeal for the three aforementioned issues, and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding those three service connection claims. Accordingly, the Board does not have jurisdiction to review those three service connection claims of the cervical spine, the upper left extremity neuropathy, and the gastrointestinal disorder, and they are therefore dismissed. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.