Citation Nr: A25010331 Decision Date: 02/05/25 Archive Date: 02/05/25 DOCKET NO. 240508-437569 DATE: February 5, 2025 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted from July 15, 2021. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the period prior to July 15, 2021 FINDING OF FACT For the period from July 15, 2021, the Veteran's service-connected disabilities preclude him from substantial and gainful employment. CONCLUSION OF LAW For the period from July 15, 2021, the criteria for total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active United States Marine Corps service from February 1965 to December 1968, to include 13 months combat service in Vietnam. The Veteran's decorations include the Combat Action Ribbon, National Defense Medal, the Vietnamese Campaign Medal with devices, and the Vietnamese Service Medal with devices. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2024. A transcript of the hearing has been associated with the claims file. The rating decision on appeal was issued in May 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In February 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to an increased rating for posttraumatic stress disorder (PTSD) most recently addressed in a May 2022 rating decision. In May 2023, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window. In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on August 6, 2024. Therefore, the Board may only consider the evidence of record at the time of the May 2023 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Veteran has another AMA appeal stream, which includes a claim related to an increased evaluation for posttraumatic stress disorder and increased evaluation for neuropathy. That separate appeal stream will be addressed under separate cover. 1. Entitlement to individual unemployability due to service-connected disability (TDIU) The Veteran seeks a TDIU and contends posttraumatic service disorder (PTSD) from a year's combat in Vietnam during the Vietnam War and service-connected chronic pain from sciatica, which causes disrupted sleep, have worsened since his last fulltime employment and render him unemployable. 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 they are 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: Posttraumatic stress disorder (rated 50 percent, from November 2011, and 70 percent, from July 2021); diabetes mellitus (rated 20 percent from February 2018); bilateral lower extremity neuropathy, sciatic nerve (each rated 20 percent from December 2021); and noncompensable ratings for hypothyroidism, hypertension, and left ear hearing loss. The combined evaluation is 60 percent from February 12, 2018, and 80 percent from July 15, 2021. Based on the forgoing, the Veteran has one disability rated 60 percent or more OR at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more from July 15, 2021. 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 warranted. The Veteran graduated high school and reported no college after high school. For work history the Veteran reported working as a police officer for 24 years in New York City, and 11 months as a policeman in Washington, DC prior to that. More recently the Veteran reported working at a US Embassy in a program for construction security. The Veteran reported that he worked in 12 different overseas building operations. His job was to ensure construction workers did not compromise embassy security. The Veteran reported problems concentrating and cooperating when employed. The Veteran reported no additional skills, training, or work experience outside of police work and construction security. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of bilateral lower extremity sciatica. The Veteran was exposed to Agent Orange in Vietnam, which is credited with causing his diabetes mellitus, which in turn resulted in the Veteran's peripheral neuropathy symptoms of pain, tingling and numbness, worse at night. In April 2022 VA examination, the Veteran said he was a retired police officer, and the peripheral neuropathy symptoms resulted in 0 to 1 week lost in the last 12 months working. In a private report added to the file in March 2021, the Veteran reported chronic pain on a scale of 0 to 10, regularly around 3 to 4. The leg symptoms cause chronic sleep disruption. Poor sleep at night causes poor concentration and reduced ability to perform tasks at an acceptable rate during the day. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of service-connected posttraumatic stress disorder and major depressive disorder from experiencing firsthand combat in Vietnam and seeing death and severe injuries to fellow soldiers and civilian casualties. The file contains to clinical assessments from private psychiatric doctors, both of which say the Veteran's mental health symptoms due to combat have worsened and prevent the Veteran from pursuing gainful employment. The March 2021 private assessor diagnosed the Veteran with chronic posttraumatic stress disorder and major depressive disorder related to military service. This doctor treated the Veteran every 4 to 6 weeks from March 2020 to February 2021. She said the Veteran's condition is chronic with the possibility of symptom reduction but not total resolution due to severity. She found deficiencies in family relations, mood, intrusive recollections of traumatic experience, unprovoked hostility and irritability, panic or depression affecting his ability to function independently, appropriately, and effectively, and chronic sleep impairment due to chronic sciatic pain. She found mildly limited ability to remember locations and work-like procedures, ability to maintain attention and concentration for extended periods, ability to sustain ordinary routine without supervision, ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, and the ability to set realistic goals or make plans independently, all mildly limited. She found the Veteran's ability to perform activities within schedule, maintain regular attendance, and be punctual within customary tolerance and ability to respond appropriately to changes in the work setting to be moderately limited. She also found a markedly limited ability to work in coordination with or proximity to others without being distracted by them, the ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Also markedly limited is the Veteran's ability to interact appropriately with the general public, the ability to accept instructions and respond appropriately to criticism from supervisors, and the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. She also noted that the Veteran takes tramadol tablets, 1 to 4 per day for severe pain. She found the Veteran experiences good days and bad days, resulting in more than three days absent from work per month. The doctor noted that the Veteran's work history is primarily military-based, and security enforcement positions. These positions limited contact with others and consisted of routine work. In civilian setting, the Veteran's significant mood and PTSD symptoms would interfere too greatly. In prior positions with the military, police, and security, the known authority structure helped the Veteran remain in those roles. Since leaving those positions, the Veteran's symptoms have become more pronounced and negatively increasingly impact his ability to work. The Veteran also submitted another private assessment from a different doctor in May 2023. This examiner reviewed the Veteran's file, noting diagnoses of PTSD and Major Depressive Disorder. The examiner noted symptoms in the file for the Veteran of depression, anxiety/nervousness, irritability, low motivation, frustration, hypervigilance, nightmares, sleep problems, intrusive thoughts, anger, restless/fidgety behavior, somewhat guarded, intermittent eye contact, tangential thinking, and rambling speech. Tests in the file showed the Veteran was considered to have very severe range PTSD, with elevated anxiety and depression scores. The file showed the examiner that the Veteran spent two years in Vietnam, and that his unit had been declared combat-ineffective due the number of wounded and killed during combat. It also showed the Veteran is quick to assume that situations are threatening, and that he attempted suicide in 2005, playing Russian roulette. His second daughter died by suicide. The Veteran has/had prescriptions for citalopram, trazodone, and melatonin. When asked when his symptoms began interfering with his ability to work, the Veteran indicated, "I don't know how to answer that." When asked how the difficulties interfered with his ability to work, he said, "At the time, there were problems concentrating and cooperating; but I compartmentalized to get through it." When asked when he became unable to work, as a result of his symptoms, the Veteran answered, "In 2019 - that was the last time I had a regular position. In 2022, I did a 10-day training course." This examiner noted that the Veteran has deficits with memory, which are made worse by depressive symptoms of anhedonia and sadness, decreased energy, and feelings of frustration at his perceived deficits. His primary issue, PTSD, causes even more problems with attending and concentrating, when he must focus for extended periods of time, when he must multi-task, or when he is especially challenged or experiencing even greater symptom severity (e.g., intrusive memories/flashbacks, increased irritability/anger). During such instances the Veteran may have difficulty being persistent in completing tasks, may take even more time than expected to complete tasks, or may have trouble finishing tasks altogether. While the Veteran has successful work history, he described being unable to hold down a job on a long-term basis at the present time, due to his problematic symptoms. As example he pointed to his relationship with his current wife. Twice she called the police on him, but the police left. His method of coping with his wife is to leave the house. He said that leaving as a coping mechanism is helpful in the moment, but it does not fix the underlying problem, which is still there when he returns. The examiner reported that the Veteran exhibited irritable, dysphoric affect, as evidenced by his facial expressions and verbalizations/tone of voice. The Veteran exhibited limited memory skills. In terms of immediate memory, the Veteran was able to recall three words he was asked to repeat. However, in terms of recent memory, he recalled only one of the three words. In terms of delayed memory, the Veteran recalled only one of the three words he was previously presented correctly after five minutes. In terms of remote memory, the Veteran was able to provide historical information. Overall, the Veteran exhibited limited concentration skills. The examiner stopped the test, because the Veteran was taking an inordinate amount of time to complete the task. On both simple and complex problems, the Veteran required multiple lengthy pauses, as well as repetition, in order to work through the exercises and produce his answers. The Veteran exhibited good judgment and insight, as evidenced by his responses regarding several different scenarios. With regard to the Veteran's ability to interact with others (i.e., relate to and work with supervisors, co-workers, and the public), the Veteran's overall level of functioning (i.e., ability to function independently, appropriately, and effectively on a sustained basis appears limited, as evidenced by his likely difficulty with: cooperating with others; asking for help when needed; handling conflicts with others; responding to requests, suggestions, criticism, correction, and challenges; keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness. With regards to the Veteran's ability to concentrate, persist, or maintain pace (i.e., focus attention on work activities and slay on task at a sustained rate), the Veteran's overall level of functioning (i.e., ability to function independently, appropriately, and effectively on a sustained basis) appears limited, as evidenced by his likely difficulty with: working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding distractions while working; working close to or with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at work; working a full day without needing more than the allotted number or length of rest periods during the day. With regards to the Veteran's ability to adapt, to manage himself (i.e., regulate emotion social behavior, and maintain well-being in a work setting), the Veteran's overall level of functioning (i.e., ability to function independently, appropriately, and effectively on a sustained basis) appears limited, as evidenced by his likely difficulty with: responding to demands; adapting to changes managing his psychologically based symptoms; and making plans for himself independently of others. Given the forgoing, service-connected PTSD with anxiety and depression symptoms, and bilateral sciatica preclude the Veteran from the ability to secure and follow a substantially gainful occupation consistent with the Veteran's education, skills, training, and work history. The Veteran has no formal education beyond high school, and no work training or experience to speak of outside of military and security work. Together, his service-connected mental health disability symptoms from PTSD and physical disability symptoms from sciatica have rendered the Veteran unable to maintain gainful employment since his schedular eligibility date, July 15, 2021. Accordingly, a TDIU is warranted from that date. REASONS AND BASES FOR REMAND As outlined above, prior to July 15, 2021, the Veteran did not meet the schedular criteria for TDIU under 4.16(a). Thus, the Board must remand for an opinion from the Director of the Compensation Service (Director) in the first instance. 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: Pursuant to 38 C.F.R. § 4.16 (b), refer the claim for a TDIU prior to July 15, 2021, to the Director for extraschedular consideration. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. (he/him/his) 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.