Citation Nr: A23028126 Decision Date: 10/11/23 Archive Date: 10/11/23 DOCKET NO. 200306-72558 DATE: October 11, 2023 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected post-traumatic stress disorder (PTSD) with major depressive disorder is denied. FINDING OF FACT The Veteran's service-connected PTSD with major depressive disorder alone does not preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU based on service-connected PTSD with major depressive disorder alone are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 2014 to May 2018. The Veteran was medically retired. A rating decision was issued under the legacy system in March 2019 and the Veteran submitted a timely notice of disagreement. In February 2020, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC), after which the Veteran opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a March 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the March 2019 rating decision. Given the above, the Board finds that the February 2020 SOC is the decision on appeal. In the March 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the February 2020 SOC, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the February 2020 SOC and prior to receipt of the VA Form 10182, or (2) more than 90 days following receipt of the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to a TDIU due to service-connected PTSD with major depressive disorder. In a February 2019 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran asserts he is unemployable due to his service-connected PTSD with major depressive disorder. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: PTSD with major depressive disorder, rated 70 percent from May 2015; irritable bowel syndrome, rated 30 percent from May 2018; lumbosacral strain, rated 20 percent from May 2018; right hip sprain, rated 10 percent from May 2018; right knee strain, patella femoral pain syndrome, chondromalacia, rated 10 percent from May 2015; left knee strain, patellofemoral pain syndrome, chondromalacia, rated 10 percent from May 2015; left cubital tunnel syndrome, rated 10 percent from May 2015; right cubital tunnel syndrome, rated 10 percent from May 2015; right lower extremity radiculopathy, sciatic nerve, rated 10 percent from May 2015; left lower extremity radiculopathy, sciatic nerve, rated 10 percent from May 2015; right hip, flexion of thigh, rated 0 percent from May 2015; right hip, limitation of thigh, rated 0 percent from May 2015, and allergic rhinitis, rated 0 percent from May 2015. Based on the forgoing, the Veteran has one disability rated 60 percent, PTSD with major depressive disorder. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted. The Veteran is a high school graduate that achieved the rank of E-4, Specialist, in the Army. His military occupational specialty (MOS) was Petroleum Lab Specialist. The Veteran attended 8 weeks of training to attain this MOS. The Veteran reported employment as a Lifeguard at the YMCA since July 2018, where he worked 4 hours per day and 10-15 hours per week. The Veteran reported earning $300 per week and $12,000 annually. The Veteran took college courses to pursue an undergraduate degree in Nursing from January 2016 to December 2017. Since the Veteran was medically retired from the Army, he has utilized VA Vocational Rehabilitation and Employment (VR&E) benefits to pursue a bachelor's degree in nursing before switching to pursuing a bachelor's degree in psychology in December 2018. In his December 2018 Request for a Change of Program, the Veteran stated that his new employment objective would not aggravate his disabilities, that he would be able to relate more and help others with recovery given his experiences, and that his research identified at least three career paths he could pursue with his new program. The evidence of record during the appeal period indicates the Veteran continues to pursue a college degree, has carried a full-time college courseload since his medical retirement, and has achieved grades sufficient to maintain eligibility for VR&E benefits. In December 2017, the Veteran was afforded a VA examination to evaluate his PTSD. The examiner noted diagnoses of PTSD and Major Depressive Disorder attributable to a Military Sexual Trauma (MST) experienced by the Veteran in 2014. The examiner identified the following symptoms associated with these diagnoses: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. The examiner noted the following behavioral observations: thought process was logical, he appeared to be an adequate historian, and insight and judgment were fair. The examiner ultimately opined that these diagnoses resulted in occupational and social impairment with reduced reliability and productivity. In January 2019, the Veteran was afforded another VA examination to evaluate his PTSD and major depressive disorder. The examiner noted the Veteran had been enrolled in college since August 2018, and that the Veteran reported struggling with concentration and completing assignments, dropped several classes since starting school, and has had poor attendance. The examiner noted the Veteran was working part-time at the YMCA as a lifeguard. The examiner identified the following symptoms associated with the Veteran's psychiatric conditions: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. The examiner noted the following behavioral observations: alert and well-oriented, speech was slightly pressured, cooperative, mild psychomotor agitation present, denial of any delusional thinking, denial of auditory or visual hallucinations, denial of any suicidal or homicidal ideation, thought process was tangential, no apparent attention or memory difficulties, and presented with adequate insight and judgment. The examiner opined that these diagnoses resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. An April 2019 VA contract PTSD examination documents a VA examiner's diagnosis of PTSD and major depressive disorder which resulted in total occupational and social impairment due to symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty and an inability in establishing and maintaining effective work or social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. Upon follow up VA contract PTSD examination in August 2019, a VA examiner diagnosed PTSD and major depressive disorder that resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood due to symptoms of depressed mood, anxiety, suspiciousness, panic attacks occurring more weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work or social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and impaired impulse control such as unprovoked irritability with periods of violence. The Veteran received counseling from a private doctor, Dr. Whitehead, for his PTSD since May 2017. Dr. Whitehead opined that the Veteran's MST has manifested through both physical and emotional symptoms to include: feeling depressed or irritable, having sudden or intense reactions to things, trouble falling and staying asleep, trouble focusing, hypervigilance, flashbacks, nightmares, feelings of worthlessness and guilt, not feeling safe, not feeling connected to others, and poor appetite. Dr. Whitehead also stated PTSD severity has been linked to increased risk of sleep disturbances, and depression/anxiety can lead to enhanced negative core beliefs, poor self-esteem/self-concept, difficulty focusing, paying attention, feelings of worthlessness and guilt, restlessness, and irritability that has impacted the Veteran's social, occupational, and academic functioning. The Veteran has also received mental health treatment from the VA since requesting a referral in September 2018. These treatment records indicate the Veteran experiences nightmares, irritability, avoidance behaviors, depressed mood, and social isolation due to his MST. In an October 2018 MST Assessment, the Veteran was noted to have neat appearance, appropriate behavior, normal speech, calm and irritable mood, appropriate and full range affect, no hallucinations, normal cognition, normal insight/judgment, normal memory, normal intelligence, and normal abstraction. Anxiety and depression were noted as moderate. Similar observations were noted in a November 2019 mental health consult, with the exception of the Veteran's memory noted as impaired instead of normal. The Board concludes that the Veteran does not meet the criteria for TDIU. The evidence reflects that the Veteran has post-high school training and has been pursuing a college degree throughout the pendency of his appeal, while also working part-time as a lifeguard. The Board acknowledges the medical opinions indicating the Veteran's service-connected PTSD with major depressive disorder has an effect on his occupational impairment. However, the Board finds that the overall occupational impact of that disability is most nearly approximated, and compensated, by his current 70 percent disability rating. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment. The evidence of record indicates the Veteran is capable of performing the physical and mental acts required by employment. While the schedular criteria for TDIU have been met, the evidence persuasively weighs against finding that the Veteran's service-connected PTSD with major depressive disorder preclude him from securing or following substantially gainful employment. As the evidence is persuasively against the Veteran's claim, the benefit-of-the-doubt rule is not for application. See Lynch v. McDonough, 21F.4th 776 (Fed. Cir. 2021) (en banc)) (only when the evidence persuasively favors one side, or another is the benefit-of-the-doubt doctrine not for application). (Continued on the next page) ? The Veteran's claim for TDIU is denied. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Blackmore, Bryan R. 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.