Citation Nr: 23023945 Decision Date: 04/25/23 Archive Date: 04/25/23 DOCKET NO. 17-61 799 DATE: April 25, 2023 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) prior to March 12, 2020 is granted. FINDING OF FACT Resolving doubt in the Veteran's favor, the evidence reasonably shows that the Veteran's service connected disabilities, especially PTSD, rendered her unable to secure and follow a substantially gainful occupation prior to March 12, 2020. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to March 12, 2020 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 2009 to May 2010 and active duty for training in the National Guard from July 2008 to November 2008, with additional National Guard service to 2017. This matter was last before the Board of Veterans' Appeals (Board) in January 2023 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO) because the TDIU claim was inextricably intertwined with other claims being remanded. Entitlement to TDIU prior to March 12, 2020 Initially, the Board notes that the Veteran is in receipt of TDIU effective March 12, 2020, the date the Veteran's claim for TDIU was received. As that effective date does not cover the entire appeal period the Board will consider TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), for the period prior to March 12, 2020. TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this 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 disability or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the phrase has two components: an economic one and a noneconomic one. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. 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 her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran met the schedular requirements for consideration of TDIU under section 3.156(a) since December 11, 2015, as her posttraumatic stress disorder (PTSD) had been assigned a 70 percent rating from that date (an earlier effective date had been granted). She was also service connected for other disabilities with the effective date of December 11, 2015, such as left knee instability rated 20 percent, left wrist sprain rated 10 percent, lumbosacral strain rated 10 percent, left knee strain rated 10 percent, right knee patellofemoral pain syndrome rated 10 percent, and tinnitus rated 10 percent, resulting in a combined rating of 90 percent from December 11, 2015. On VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in March 2020, the Veteran indicated that her service-connected PTSD prevented her from working. She noted (aside from her Reserve/National Guard duties) she worked as a tutor 6 to 8 hours per week from October 2014 to November 2014. She indicated she last worked full-time in April 2010 for the U.S. Army and became too disabled to work at the same time. She indicated that she left her last job due to her disability. In April 2016 the Veteran was seen at a Vet Center by a readjustment counselor. The Veteran discussed her PTSD symptoms and specifically her hypervigilance, which causes her to become anxious and overwhelmed when she is in a "busy" environment. She stated she cannot handle the stress her hypervigilance creates. She reported that she senses more anxiety when a man is behind her regardless of the situation. She expressed an understanding how her military sexual trauma affects her life and her thought process on a daily basis. A July 2016 VA examiner indicated that the Veteran's PTSD resulted in symptoms that included difficulty in establishing and maintaining effective work and social relationships, chronic sleep impairment, panic attacks that occur weekly or less often, suspiciousness, anxiety and depressed mood. On July 2016 VA back and knee conditions examinations, the Veteran reported her back and knee disabilities cause functional impairment in that she is unable to carry and lift things due to her back symptoms, and her knee hinders such activities as climbing stairs, driving, walking, bending and squatting. With regard to the appeal prior to March 12, 2020, the Veteran's left knee disability resulted in pain, decreased mobility, and difficulty with walking, bending, squatting, and climbing. Her back disability results in pain with decreased ability to lift and carry. Her PTSD results in difficulty in establishing and maintaining effective work and social relationships, chronic sleep impairment, panic attacks, suspiciousness, anxiety, and depressed mood. Based on the above findings and affording the Veteran any reasonable doubt, her service-connected disabilities prevented her from securing and following a substantially gainful occupation for the period prior to March 12, 2020. As such, the criteria for TDIU prior to March 12, 2020 have been met, and the claim is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.