Citation Nr: 22018982
Decision Date: 03/31/22	Archive Date: 03/31/22

DOCKET NO. 19-03 307A
DATE: March 31, 2022

ORDER

Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected major depressive disorder is granted.

FINDING OF FACT

The Veteran's service-connected major depressive disorder prevents him from obtaining and maintaining substantially gainful employment.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1977 to October 1989.

This matter again comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Board previously remanded this matter in April 2021.

TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b).

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to the unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to deficiencies in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id.

Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of employment and the reason for termination. Id.

Although the Board must consider "the effect of combinations of disability" under 38 C.F.R. § 4.15, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). As part of this ultimate determination, VA is required to obtain a medical examination or opinion only when "necessary to make a decision on the claim." Id. (citing 38 U.S.C. § 5103A(d)(1)). Where separate medical opinions address the impact of employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id.

Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to a TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id.

The Veteran's compensable service-connected disabilities are evaluated as follows: major depressive disorder rated as 70 percent disabling effective February 10, 2012; tinnitus rated as 10 percent disabling effective February 10, 2012; and left ear hearing loss rated as noncompensable (zero percent) effective February 10, 2012. When combined, the Veteran's disability rating is 70 percent. Accordingly, the criteria for schedular consideration of TDIU are satisfied. 38 C.F.R. § 4.16(a).

Unfortunately, the evidence of record reflects that the Veteran's service-connected tinnitus does not impact his ability to work. See August 2013 VA Hearing Loss and Tinnitus C&P Examination; July 2016 VA Hearing Loss and Tinnitus C&P Examination.

However, the probative evidence of record indicates that the Veteran is unable to obtain or sustain substantially gainful employment due to his service-connected major depressive disorder. Specifically, an August 2015 private evaluation found that he "cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity." See August 2015 Narrative Evaluation by H.H.-G. (labeled "Correspondence). The examiner also found that the Veteran would miss at least three days of work per month due to his psychiatric disability, would need to leave early from the workplace at least 3 days per month, and could not stay focused for at least seven hours out of an eight-hour workday. The examiner also concluded that, when reacting to the normal pressures and constructive criticisms of the job, the Veteran would respond in an angry manner. See August 2015 Residual Functional Capacity Evaluation Re: Ability to Do Work-Related Activities (Mental) (labeled "Correspondence").

The Board also notes receipt of a lay statement by the Veteran's brother indicating that, upon return from service, the Veteran had difficulty "keeping a job." See August 2015 Statement by E.W. Another statement by the Veteran's sister reflects that he did not interact with family, and he would "lash out easily" at others, including family members. See May 2015 Statement by D.W. (received in August 2015). The Veteran's lashing out has been confirmed in his medical records, indicating that he would experience "violent outbursts" and therefore cause relationships with others to be strained. See May 2012 VA Psychiatry Note.

Moreover, the Veteran's February 2018 VA examination reflects that he had "mixed relationships" with his adult children and denied close friendships or casual acquaintances. The examiner found that the Veteran exhibited symptoms of depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances in motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. See February 2018 VA Mental Disorders (other than PTSD and Eating Disorders) C&P Examination (emphasis added).

When the Veteran was again examined in November 2019, the examiner found that he met certain diagnostic criteria for PTSD. Specifically, the examiner found that the Veteran exhibited: recurrent, involuntary, and intrusive distressing memories; recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event; marked physiological reactions to internal or external cues that symbolize or resemble and aspect of the traumatic event; avoidance of or efforts to avoid distressing memories, thoughts, or feelings; avoidance of or efforts to avoid external reminders; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement of others; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; and sleep disturbance. The examiner also noted that the Veteran showed: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; disturbances of motivation and mood; and suicidal ideation. See November 2019 VA Initial Posttraumatic Stress Disorder (PTSD) C&P Examination (received in January 2020, emphasis added). Ultimately, the examiner found that the Veteran's psychiatric condition caused occupational and social impairment with reduced reliability and productivity. See id. (emphasis added).

Although there are additional records indicating that a nonservice-connected back disability initially caused the Veteran to leave his previous position, the Board finds that the evidence is in approximate balance that his service-connected major depressive disorder prevents him from obtaining and maintaining substantially gainful employment. As noted above, the examiners have all indicated that the Veteran's psychiatric symptoms negatively impact his ability to work. Moreover, the Veteran's siblings, in their lay statements, reflect the Veteran's strained relationships with family members and inability to sustain employment for an extended period of time.

Both Social Security Administration (SSA) and VA medical records find that the Veteran is unable to work due to a nonservice-connected back disability. See January 2013 SSA Disability Determination and Transmittal; November 2011 VA Suicide Prevention Note; November 2011 Mental Health Triage Note; February 2012 VA Psychiatry Attending Admission Evaluation Note; March 2012 VA Physical Therapy Consult; February 2018 VA Mental Disorders (other than PTSD and Eating Disorders) C&P Examination. Nevertheless, the Board finds that the Veteran's service-connected major depressive disorder renders him unable to obtain or sustain a substantially gainful occupation in light of the evidence of severity of his symptomatology in addition to his history of outbursts with others and limited interactions outside of his immediate family.

Resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected major depressive disorder has resulted in unemployability, based on the evidence discussed above. Given the Veteran's symptoms and noted functional impairment due to his service-connected major depressive disorder, the Board affords the Veteran the benefit of the doubt and finds that his service-connected major depressive disorder satisfies the criteria for TDIU. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.16(a); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans' has 'taken upon itself the risk of error' in awarding . . . benefits"). Accordingly, the Board grants TDIU.

 

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Hoffman

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.