Citation Nr: A24049331 Decision Date: 08/22/24 Archive Date: 08/22/24 DOCKET NO. 210520-162603 DATE: August 22, 2024 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT 1. The Veteran is rendered unable to obtain or maintain substantially gainful employment due to his service-connected disabilities when considering his education, special training, and employment history. CONCLUSION OF LAW 1. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2002 to April 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran timely appealed the rating decision by submitting a May 2021 VA Form 10182 and requested the evidence submission docket. Therefore, the Board may only consider the evidence of record at the time of the November 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran 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 decision and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. 1. Entitlement to a TDIU is granted. The Veteran seeks a TDIU. He contends he is unable to secure or follow substantial employment due to his service-connected disabilities. See October 2020 VA Form 21-8940. Although the Veteran only listed PTSD on his claim form, the following decision will consider each of the Veteran's service-connected disabilities. The period on appeal begins July 23, 2020. An application for a TDIU is considered a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Generally, the effective date of an award of increased compensation will be the date of receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). However, if the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim, then the effective date becomes the date the increase is factually ascertainable. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Here, the Veteran submitted an October 5, 2020 VA Form 21-8940 Application for Increased Compensation Based on Unemployability. However, VA received a VA Form 21-0966 Intent to File on July 23, 2020. Notification Letter, dated August 5, 2020. The Board has determined that no other communication submitted by the Veteran prior to July 23, 2020 indicates an intent to apply for entitlement to a TDIU. Therefore, the effective date for the period on appeal begins July 23, 2020. 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. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. 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 nonexertional) 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 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378 (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 (1993). Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232 (2019). VA received the Veteran's VA Form 21-8940 application for increased compensation based on unemployability on October 5, 2020. The Veteran is service connected for PTSD rated at 70 percent from July 23, 2020 through March 9, 2023; tinnitus rated at 10 percent; and tension headaches with a noncompensable rating. Therefore, the Veteran's disability ratings have satisfied the schedular criteria for a TDIU during the period on appeal. See 38 C.F.R. § 4.16(a). With the threshold requirements satisfied, the Board finds that evidence of record weighs in favor of a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Regarding the economic component, the Veteran last worked as a sheeter helper from October 2019 to April 2020. See October 2020 VA Form 21-4192. He worked shift work for an average of 42 hours per week with maximum gross monthly earnings of $2,100.00. Id.; October 2020 VA Form 21-8940. The Veteran's last employer was unaware of his disability, and states the Veteran was let go as part of a reduction in force related to the Coronavirus pandemic. See October 2020 VA Form 21-4192. The Veteran confirms the employer was unaware of his disability, but states he was fired for poor performance. See July 2020 VA Form 21-4138. Prior to working as a sheeter helper, the Veteran reports working with a career and staffing agency for approximately four months to find employment. See October 2020 VA Form 21-8940. The Veteran reports seeking employment of any kind with the same staffing agency for an undetermined period of time following his employment as a sheeter helper. Id. Despite these efforts, the Veteran remained unemployed throughout the period on appeal. See May 2021 K.M.D., M. ed., CRC opinion. Regarding the non-economic component, the Veteran has completed his GED and some college courses. Id.; 2002 DD Form 1966; April 2020 academic transcript. The Veteran was unable to obtain any degree or certification through his college courses, and his VR&E benefits were discontinued in 2020. See September 2020 VA Form 28-1902f. The Veteran's MOS during his service was chemical operations specialist. DD Form 214. As for mental and physical ability to perform the requirements of the occupation at issue, the Veteran is mentally unfit for employment. The Veteran submitted a May 2021 private medical opinion by K.M.D., M. ed., CRC. K.M.D. spoke with the Veteran over the phone, reviewed the VA claims file, and opined that it is more likely than not that the Veteran has been unable to secure and follow substantially gainful employment at even the sedentary physical demand level since at least July 2020 due to his PTSD. K.M.D. noted that the Veteran is unable to satisfy most, if not all, basic requirements of any employment such as staying focused for at least two hours or follow short and simple instructions. The Veteran was afforded a VA medical examination for his PTSD in October 2020. The examiner noted symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work ans social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. The examiner opined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The examiner noted that the Veteran's PTSD specifically affects his reliability and productivity at work and school, as well as his relationships with others and his ability to engage socially. The Veteran submitted a letter written by his VA mental health treatment provider at the time. September 2020 L.M, Psy.D. letter. His provider stated the Veteran has had a difficult time sustaining employment and completing online schooling. It was also noted that the Veteran's condition worsened after losing his job due to covid and losing his VR&E benefits. The Veteran's provider reported he cannot concentrate or sustain a positive sense of self. Furthermore, in discontinuing the Veteran's VR&E benefits, the VRC spoke to the decline they observed in the Veteran. September 2020 VA Form 28-1902f. The VRC stated "over the past six months this VRC has witnessed a significant increase in the debilitating symptoms of PTSD and social anxiety...after a careful and thorough evaluation of [the Veteran's] current status, it is determined that he is not employable at this time." It was also noted in a September 2020 VA Form 28-0791 preliminary independent living assessment that the Veteran has difficulty speaking to even VA staff over the phone, and usually does not do the following due to his disability: run errands, drive a car or use public transit, visit relatives or friends, participate in moderate or vigorous activities, maintain memory and concentration, and get in and out of his residence. It is noted that the Veteran rarely leaves his home due to his PTSD symptoms and is supported by his son. The statements and opinions described above are generally consistent with VA treatment records. The Veteran has reported a good day as being a day where he gets out of bed, does the dishes, showers, and walks to the gas station to buy cigarettes. See September 2020 VA Treatment records. In addition, it is consistently reported that the Veteran goes through extreme sleepless cycles, experiences anger and frustration in social interactions, and outbursts at his son. See July 2020, September 2020 VA treatment records. In addition to his PTSD, the Veteran is service connected for tinnitus and non-compensable tension headaches. The Veteran described his tinnitus as interfering with sleep and being distracting when conversing with people. September 2019 VA audiologic evaluation. The Veteran reported experiencing headaches sometimes when he goes out in public and believed this to be related to social anxiety. See August 2020 VA treatment records. In view of the totality of the evidence, the Board finds that it is more likely than not that the Veteran is unemployable due to his service-connected disabilities. With respect to physical impairments impacting occupational functioning, the Veteran's tinnitus distracts him when conversing with others. His tension headaches appear to affect his ability to socially interact in public, but there is no indication that they would impact the types of occupational roles he has historically held. With respect to mental impairments impacting occupational functioning, the Veteran's PTSD manifests in anger and frustration in social interactions, great difficulty in regularly leaving his house, inability to drive a vehicle or use transportation, difficulty answering the phone, difficulty maintaining memory or concentration, and social anxiety in general. The Veteran has a GED-level education with some exposure to college courses. His prior employment was as a sheeter helper, which appears to be a physical factory job assisting in the production of sheet paper. The Board finds that the Veteran is unable to secure or follow substantially gainful employment consistent with his education and work history due to his service connected disabilities. Of note, the Veteran is unable to reliably leave his home, which would preclude him from physical jobs similar to his previous work as a sheeter helper. Compounding on this is the fact the Veteran cannot drive or use any form of rapid transportation, either to go to his place of employment or in the course of employment. In addition, the Veteran's difficulty communicating and angry outbursts impede his ability to work as part of a factory floor team. Lastly, the Veteran's inability to concentrate means his presence on a factory floor or similar industrial workspace poses a potential danger to himself and others. While the Board notes that the Veteran was officially let go from his prior employment as part of covid-related reductions in force, and not due to his disability, this does not outweigh the evidence supporting that the Veteran is unable to secure or follow substantially gainful employment. Accordingly, a TDIU is granted. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Jaeger 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.