Citation Nr: 25004358 Decision Date: 04/01/25 Archive Date: 04/01/25 DOCKET NO. 19-35 891A DATE: April 1, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due solely to service-connected posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The Veteran's service-connected PTSD is of such nature and severity as to preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU due solely to service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1982 to April 1983, and in the United States Army from June 2007 to August 2007 and from May 2011 to August 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in October 2021, who issued a January 2022 Board decision. A transcript of the hearing has been associated with the claims file. In December 2023, the Veteran was sent a Board hearing clarification letter, which explained the VLJ who conducted that hearing was no longer available to participate in the Veteran's appeal. The law requires the VLJ who conducts a hearing on a legacy appeal (i.e., meaning the system in effect for decisions issued by a VA Regional Office prior to February 19, 2019) must participate in any decision made on that appeal. 38 C.F.R. §20.604. As that VLJ was no longer available, the Veteran's appeal would be reassigned to another VLJ for a decision. 38 C.F.R. §20.106(b). As such, the Veteran has a right to request another (optional) Board hearing. In December 2023, the Veteran responded and chose that he does not want another Board hearing, and for the Board to decide the case on the evidence of record. In a February 2024 Board decision, the Veteran's claim of entitlement to a rating in excess of 70 percent for PTSD was denied, and entitlement to a TDIU based on his service-connected disabilities was granted. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2024, VA and the Veteran filed a joint motion for partial remand (JMPR), which was granted by the Court, specifically vacating in part the February 2024 Board decision to the extent that it denied a TDIU based on the Veteran's service-connected PTSD alone. The Veteran did not challenge the part of Board's decision that denied a rating in excess of 70 percent for PTSD. Cacciola v. Gibson, 27 Vet. App. 45, 47 (2014). The part of the Board's decision that granted entitlement to a TDIU due to the Veteran's service-connected disabilities is favorable to him and was not disturbed by the Court. Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007). The matter now returns to the Board for further consideration as to whether the Veteran is entitled to a TDIU solely based on his service-connected PTSD. Entitlement to a TDIU due solely to service-connected PTSD. The Veteran contends that his service-connected PTSD prevents him from obtaining and maintaining gainful employment. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. For the purpose of determining one 60 percent disability, disabilities resulting from a common etiology or a single accident are considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 416(a). When assessing unemployability for VA purposes, the Board may consider the veteran's level of education, special training, and previous work experience, but not age or any impairment caused by non-service connected disabilities. See 38 U.S.C. § 1155; see also 38 C.F.R. §§ 3.341, 4.16(a), 4.19. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. Here, the Veteran's service-connected PTSD has been rated as 70 percent disabling. As such, he meets the schedular criteria for a TDIU. The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to his service-connected PTSD. Turning to the evidence of record, in April 2015, the Veteran submitted a VA Form 8940: Application for Increased Compensation Based on Unemployability. The Board notes the Veteran reported his last employment history from April 2015 to June 2015 as a factory worker, earning no more than $1,736 a month. In a September 2018, VA Form 4192: Request for Employment Information, the Veteran's last employer confirmed his dates of employment from April 2015 to September 2015, the Veteran's role, and that he earned $3,142 during the 12 months preceding the last date of employment. The Board acknowledges there may be an error, as the employer probably meant $3,142 per month. The Veteran did not report his education. Per a June 2022 VA examination, the Veteran has obtained his bachelor's degree in management. In a June 2015 VA medical examination, the examiner opined the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran's symptoms as depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; memory loss, such as forgetting names, directions or recent events; 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 also noted the Veteran as capable of managing his financial affairs. Although the Veteran was not employed at the time of the VA medical examination, he was employed at a bicycle plant and stopped working there a couple of weeks prior to the examination. He reported he had missed too much work due to appointments, and reported difficulty with his mental health diagnosis and employment, reporting having 3 jobs since 2012 and none of them had lasted more than 6 months. It appears the Veteran's service-connected PTSD interfered with his employment in terms of the nature of his employment and scheduling, which is foundational for any employment. In an October 2018 VA medical examination, the examiner opined the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Specifically, the examiner opined the Veteran has difficulty interacting and working with others (i.e., his interpersonal relatedness). The examiner elaborated that that Veteran has irritability or outbursts of anger- alienates others, creates fear; exaggerated startle response- causes embarrassment and sometimes "invites" pranks and teasing; apathy and anhedonia- saps the desire to connect with others; detachment or estrangement- reduces the natural interest in relating to other people; restricted range of affect- impairs the ability to empathize and appropriately express emotion; negative beliefs/expectations about self/the world- causes the Veteran to withdraw and avoid social interaction, and; persistent negative emotional state. The examiner explained the Veteran's symptoms impair his ability to work cooperatively and effectively with coworkers, supervisors, and the public to a moderate extent. The examiner also explained the Veteran's attention, concentration, and memory are affected by his PTSD. The examiner elaborated that the Veteran has difficulty concentrating; recurrent and distressing recollections of the traumatic events; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; avoidance of thoughts or feelings associated with traumatic events, and; hypervigilance. The examiner further explained that the Veteran's symptoms interfere with attention and concentration directly or indirectly; impede the encoding of information into memory, and; slow down problem-solving. As further elaboration, the examiner explained these symptoms impair the Veteran's ability to understand and follow instructions, retain instructions, communicate effectively in writing, and impair his ability to solve technical or mechanical problems to a mild extent. Lastly, the examiner opined the Veteran's motivation and drive are impacted. Specifically, the examiner explained the Veteran experiences apathy and anhedonia, which dampen enthusiasm, decrease motivation; fatigue, which causes motivation to flag and drive to wither, and; that these symptoms impair the Veteran's ability to maintain task persistence and pace, arrive at work on a time, and work a regular schedule without excessive absences, to a mild extent. All these elements and details reinforce the obstacles and inability of the Veteran to obtain and maintain gainful employment, as all of the aforementioned factors are necessary factors in any type of employment. In a November 2021 VA examination, the examiner, who was the Veteran's VA psychiatrist, opined the Veteran displays total occupational and social impairment. The examiner listed the Veteran's symptoms and opined the Veteran has deteriorated since his last C&P examination, and that his symptoms of anxiety and depression have rendered him unable to acquire or maintain gainful employment. The Board acknowledges that the Veteran's psychiatrist has had more interaction with the Veteran, which provides him a more holistic understanding as to the Veteran's mental health condition. As such, the Board affords this opinion significant probative weight. At the November 2021 hearing, the Veteran testified to getting confused, which is why he does not drive, and reported he will go out and not know where he is; that he has severe problems with memory loss, even forgetting people, and; that he stays isolated. As previously explained, the Veteran's PTSD does affect his interpersonal relatedness with others, which is a foundational factor for any employment, which can affect his ability to secure and follow employment. That his memory is also affected is significant in ensuring he stays on task for any type of employment. In a June 2022 VA medical examination, the examiner opined the Veteran displays occupational and social impairment with deficiencies in most areas. The examiner explained the Veteran has anger and would do best working in a sedentary environment with limited interpersonal interaction, and; that he would do best in a low pressure, sedentary environment, which allows him to accomplish tasks at his own pace. The Veteran's history, education, skill, and training, include his recent acquisition of a bachelor's degree in management, have all been considered. The Board acknowledges the Veteran's education, skill, and training for the specific environment may be limited. As such, this significantly limits the Veteran's professional opportunities, especially given that the bulk of the Veteran's past employment, as listed on his VA Form 8940, was that of factory work, which is less inclined to sedentary work. Given the direction from the Court's October 2024 JMPR of strictly analyzing whether the Veteran is unable to obtain and maintain gainful only because of his service-connected PTSD, the Board finds that he is. In this limited scenario, the Veteran is not-service connected for any musculoskeletal disabilities that inhibit and/or prevent him from physical employment tasks. However, the history of his education and professional experience significantly affects and limits him from employment that requires a higher degree. The totality of the record indicates that during the appeal period, the Veteran's PTSD significantly impairs his judgment, mood, temper, memory, and decision-making process, which are essential functions in many occupations, particularly those that routinely interact with other people. The functional impairment due to his service-connected PTSD are of sufficient severity to prevent securing and following a substantially gainful occupation. Therefore, the Board finds that a TDIU is warranted due solely to the Veteran's service-connected PTSD. Lastly, in addressing the October 2024 Court JMPR as to whether special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is affected, the Veteran has been granted SMC on account of PTSD with depression as a single disability, upon which the instant TDIU is based, and additional service-connected disabilities of (CONTINUED ON NEXT PAGE)? sleep apnea and right ankle sprain, independently ratable at 60 percent from June 29, 2018. As such, there is no need for the Board to make a separate ruling on this matter. A. Dean Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Smith, 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.