Citation Nr: 22019263 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-11 935 DATE: March 31, 2022 ORDER Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), as of December 22, 2017, but not earlier, is granted. FINDINGS OF FACT 1. The competent and credible evidence of record indicates that the service-connected disabilities have precluded the Veteran from securing and following substantially gainful employment as of December 22, 2017, but not earlier. 2. Prior to December 22, 2017, the Veteran retained substantially gainful employment that is not shown to have been in a protected environment. CONCLUSION OF LAW The criteria for entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) have been met as of December 22, 2017, but not earlier. 38 U.S.C. § 1155; 38 C.F.R., §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1969 to December 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran appeared at a hearing by video conference before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. 1. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). TDIU may be assigned, if the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one service-connected disability it is ratable at 60 percent or more; or if there are two or more service-connected disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability, presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31 (1994). In evaluating a Veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The fact that a Veteran is unemployed or has difficulty finding employment is not enough, as a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The current service-connected disabilities are posttraumatic stress disorder (PTSD), rated 70 percent; status post left-hand laceration repair, rated 0 percent; and left hand scar, rated 0 percent. The combined service-connected disability rating is 70 percent as of February 24, 2017. In addition, according to VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran stopped working due to service-connected disabilities on December 22, 2017. Therefore, the Veteran meets the schedular criteria for consideration of the assignment of TDIU effective February 24, 2017. The Board's consideration turns to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. The record indicates that the Veteran he has a doctorate in physical therapy. He last worked as a physical therapist for his own private office in December 2017. At an August 2021 hearing, the Veteran testified that while working as a physical therapist, PTSD, depression, and anxiety worsened, and he experienced issues at work. The Veteran testified that he could not remember patient names, could not remember to bill a patient, did not take notes, and forget to lock the office. There were lots of days he could not work. The Veteran stated he became aggressive, was not compassionate, and would have outbursts when dealing with people. The Veteran testified that if he heard the sound of a helicopter, he jumped under the car in the parking lot of his office. A January 2021 letter from a long time private psychiatrist of the Veteran, stated that the Veteran received regular treatment with medication monitoring and therapy for service-connected PTSD. The doctor described the Veteran's PTSD as very severe affecting his Global Assessment of Functioning, and that he was unable to hold a job, let alone perform the requirements for the job. In addition, the Veteran could not be around crowds as it would put him in a near continuous panic attack. He had significant difficulty in maintaining effective work relationships. The examiner stated that the Veteran's anxiety issues truly prevent him from working or even holding easy jobs such as working at a desk job or answering phones or even being a greeter at Wal-Mart. The examiner opined that it was more likely than not that the Veteran's service-connected PTSD made him permanently and totally unemployable even for sedentary employment. At a June 2017 VA PTSD examination the examiner, a psychologist, diagnosed PTSD under the DSM-5 criteria. The examiner described the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, obsessional rituals which interfere with routine activities, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran reported having a doctoral degree in physical therapy. He stated that although he worked independently for about 16 years, he was fired from two positions due to his management style, which he was told was too aggressive and rigid. The examiner opined that the Veteran's occupational impairment was due to: disturbances in mood (depressed, anxious, irritable) and motivation with non-specific ideations of suicide without intent or attempts; frequent intrusion symptoms during wake states triggered by environments and other stimuli associated with combat traumas experienced during Vietnam; difficulty maintaining effective social interactions and relationships due to reduced frustration tolerance and increased use of avoidance and isolative coping behaviors; recurrent and acute states of hypervigilance, feelings of anxiety and restlessness, and hyperarousal; and, chronic sleep impairment due to recurrent and traumatic dreams related to combat exposures in Vietnam. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the record and finds the January 2021 private opinion to be credible, competent, and probative as it is supported by detailed rationale and provided by a psychiatrist who specifically identified and discussed the Veteran's contention and theory concerning the claimed disability and occupational limitations due to symptoms. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion she reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). After reviewing the entire record and resolving all reasonable doubt in favor of the Veteran, the Board concludes that entitlement to TDIU is warranted as of December 22, 2017, the last date in the record when it is shown that the Veteran worked full time. The evidence shows that prior to December 22, 2017, the Veteran retained full time employment. Nothing in the record suggests that the employment prior to December 22, 2017, was less than substantially gainful. The Board is mindful that the Veteran was self-employed and has considered whether that employment constituted a protected environment. However, the Board finds that the position required interaction with the public, which the Veteran was able to continue until December 22, 2017. While the Veteran stated that he worked 30 hours per week, he also stated that his highest earnings were approximately $5000 per month, and that his earnings in the 12 months prior to completion of the form in December 2017 were $90,000. In consideration of the lay and medical evidence, the Board finds that the Veteran is entitled to TDIU, based on the limitations caused by the service-connected disabilities as of December 22, 2017, but not earlier. The January 2021 private opinion is persuasive in finding that the Veteran is unable to work due to the service-connected disabilities. Because the evidence shows that the Veteran cannot secure or follow substantially gainful employment consistent with his background, education, and employment history due to the service-connected disabilities, the claim for TDIU as of December 22, 2017, is granted. The claim for TDIU prior to December 22, 2017, must be denied, because the weight of the evidence shows that the Veteran had substantially gainful employment prior to December 22, 2017. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Tsao, Associate 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.