Case 20081950

DEBORAH W. SINGLETON · 2020 · Case ID: 20081950

GRANTED

Summary

The Veteran, who served from November 1966 to September 1968, appeals the denial of Total Disability based on Individual Unemployability (TDIU) from July 13, 2010. The Board previously addressed claims for an increased rating for PTSD and service connection for erectile dysfunction, which were partially remanded by the Court of Appeals for Veterans Claims (CAVC) to address TDIU. The Board found that the issue of TDIU was reasonably raised by the record, citing the Veteran's claims for an increased PTSD rating and evidence of unemployability. The Veteran's combined rating from July 13, 2010, met the schedular requirements for TDIU consideration, with a 70% rating for PTSD, 10% for tinnitus, and non-compensable ratings for hearing loss and erectile dysfunction. Evidence considered included VA treatment records detailing persistent PTSD symptoms, a vocational assessment report, and lay statements from family and friends. The vocational assessment report, deemed most probative, opined that the Veteran's service-connected PTSD, tinnitus, and hearing loss rendered him unable to secure and follow substantially gainful employment since July 2010, citing his inability to interact with others, focus on tasks, and meet industry standards for productivity. The Veteran's social security earnings statement showed no taxable wages since 2009. Based on the evidence, the Board found the Veteran's service-connected disabilities rendered him unemployable from at least July 13, 2010, and granted TDIU on a schedular basis from that date.

Rationale

Combined rating of 70% met schedular requirements for TDIU consideration.; Veteran's PTSD, tinnitus, and hearing loss precluded substantially gainful employment.; Vocational assessment report opined unemployability since July 2010.

Special Benefit

TDIU

Docket No.

16-59 275

Full Decision Text

Citation Nr: 20081950
Decision Date: 12/31/20 Archive Date: 12/31/20

DOCKET NO. 16-59 275
DATE: December 31, 2020

ORDER

Entitlement to a total rating based on individual unemployability due to service-connected disabilities on a schedular basis from July 13, 2010, is granted.

FINDINGS OF FACT

1. The issue of entitlement to TDIU was reasonably raised by the record since the filing of the Veteran’s claim for service-connection of his post-traumatic stress (PTSD) disability on July 13, 2010.

2. From July 13, 2010, the Veteran presented with at least one disability rated at 40 percent or more with a combined rating for his service-connected disabilities of 70 percent or greater; said disabilities rendered him unable to secure and follow a substantially gainful occupation.

CONCLUSION OF LAW

The criteria for an award of TDIU on a schedular basis from July 13, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from November 1966 to September 1968.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia.

In December 2018, the Board issued a decision addressing the Veteran’s claim for an initial increased rating of his service-connected PTSD disability and a claim for service-connection of erectile dysfunction as secondary to PTSD. See December 2018, Board Decision. The Veteran appealed the Board decision to the United States Court of Appeals for Veteran’s Claims (Court), which granted a joint motion for partial remand (JMPR) of this matter in January 2020. See No. 19-0206, Ct. App. Vet. Cl., Jan. 15, 2020. In granting the motion, the Court vacated the Board’s December 2018 decision to the extent that it failed to address TDIU as part and parcel to the claim for an increased rating of the Veteran’s PTSD disability. The remaining issues which were originally appealed, were dismissed as they were waived by the Veteran through the course of the appeal before the Court. Id.

The Board finds that relevant evidence in support of the Veteran’s claim for TDIU has been added to the record since the date of the Board’s prior decision and the date of original certification of this matter to the Board, to include: a detailed earnings statement itemizing the Veteran’s yearly income; and a vocational assessment report, providing an opinion as to the Veteran’s date of unemployability due to service-connected disabilities. The Board takes this evidence into consideration in the analysis below, noting the application of a presumed waiver of AOJ consideration of these materials in the first instance. See 38 U.S.C. § 7105(e)(2018) (The Board is mindful that the passage of the AMA has restructured the applicable regulations in this regard, requiring express waiver under 38C.F.R. §20.1305(c). However, the Board notes that the favorable language of the statutory construct addressing Legacy appeals prior to the enactment of the AMA is applicable in this instance as this was the statutory language in place at the time of the Veteran’s initiated appeal. Therefore, waiver of AOJ consideration of additional evidence is presumed in this case as the new evidence has been submitted by the Veteran or the Veteran’s representative).

Entitlement to a total disability rating based upon unemployability from July 13, 2010.

The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Moreover, the Veteran argues that although his express claim for TDIU benefits was not filed until November 2020, that the record reflects an implied claim due to the Veteran’s filing for an increase of his initial PTSD rating and also as supported through additional records implying unemployability.

In this regard, the Board agrees and finds that the issue of TDIU was reasonably raised. As established in the case of Rice v. Shinseki, a claim for a TDIU can either be expressly raised by the Veteran or reasonably raised by the record when it involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Board finds that the issue of TDIU was reasonably raised by the record due to the Veteran’s filing of a claim for increase of his initial disability rating and evidence of unemployability present in the record at the time, and thus, the period on appeal stems from July 13, 2010. . See October 2010, Rating Decision (granting service-connection of PTSD at 30 percent, effective July 13, 2010); April 2011, VA Form 21-4138 (notice of disagreement filed as to initially assigned disability rating); May 2013, Rating Decision (granting initial increase of disability rating for PTSD from 30 to 50 percent).

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such 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. 38 C.F.R. § 4.16(a).

A finding of total disability is appropriate, “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. 38 C.F.R. § 4.16 states that “[m]arginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a); see also Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016) (concluding that the terms “substantially gainful occupation” and “substantially gainful employment” in § 4.16 are “synonymous”).

“Substantially gainful employment” is that employment, “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a).

In considering whether employability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

Turning to the case at hand, the record demonstrates that from July 13, 2010, the Veteran was in receipt of a combined rating of 70 percent, with temporary 100 percent ratings instituted due to hospitalization from February 22, 2013 to May 1, 2013, and from February 23, 2016 to May 1, 2016. See July 2013, Rating Decision; August 2016, Rating Decision. The combined 70 percent rating is established through a 70 percent rating for PTSD, a 10 percent rating for tinnitus, and non-compensable ratings for hearing loss and erectile dysfunction (ED). See December 2018, Board Decision (granting initial rating increase to 70 percent for PTSD and granting service connection for ED); February 2019, Rating Decision. Thus, the threshold schedular requirements for consideration of TDIU have been met, as at least one disability presented with a 40 percent rating combined with other service-connected disabilities of record for a total rating of 70
2016 to May 1, 2016. See July 2013, Rating Decision; August 2016, Rating Decision. The combined 70 percent rating is established through a 70 percent rating for PTSD, a 10 percent rating for tinnitus, and non-compensable ratings for hearing loss and erectile dysfunction (ED). See December 2018, Board Decision (granting initial rating increase to 70 percent for PTSD and granting service connection for ED); February 2019, Rating Decision. Thus, the threshold schedular requirements for consideration of TDIU have been met, as at least one disability presented with a 40 percent rating combined with other service-connected disabilities of record for a total rating of 70 percent or greater. 38 C.F.R. § 4.16(a).

The Veteran’s medical history reflects that he completed a treatment program from December 2010 to March 2011. See March 2011, Letter of Completion. Although the record confirms his successful completion of the program, the treating staff physician opined that the Veteran continues to experience significant PTSD symptoms. Id. In February 2013 the Veteran was admitted to an inpatient PTSD treatment program that continued through April 4 of that year. See July 2013, VAMC Report of Hospitalization. In a letter verifying completion of the program, a treating psychologist noted that although the Veteran put forth considerable effort, he continued to struggle with tormenting memories of war zone trauma which cause anger and a need for temporary isolation to cope and calm down enough to interact with others. Id.

The Veteran underwent another inpatient admission for PTSD treatment in February 2016. Those treatment notes reflects similar challenges presented by the Veteran’s PTSD symptoms. See February – April 2016, VA Treatment Records. In addition, a July 2016 VA examination, the Veteran reported that he had been terminated from his employment in 2009 for insubordination and had not worked since that date. See July 2016, VA Examination Report. It was noted that the Veteran experienced symptoms of recurring nightmares, persistent anxiety, isolating from others, severe depression, anger, and hypervigilance.

In a letter from the Veteran’s treating psychiatrist, it is described that despite the Veteran’s vigilant attendance in therapy and compliance with medications, his day-to-day activities are severely limited because of the severity of his PTSD symptoms. See August 2017, Private Medical Record.

Additional evidence confirms that the termination of the Veteran’s prior employment was due to his inability to work with others and his defiance towards authority. See August 2010, Employment Letter. These characteristics are consistently attributed to his PTSD symptoms through VA examiners as well as treating clinicians. Additional lay statements submitted by the Veteran’s family members and friends speak to the effects that they’ve observed, including the Veteran’s anger, irritability, depression, and inability to socialize with others. See August-September 2010, Lay Statements.

The Board finds that the most probative evidence of record is provided through an expert vocational assessment report submitted on behalf of the Veteran. See September 2020, TDIU Vocational Assessment Report. The report was the result of a thorough review of 6,370 pages of the Veteran’s claims file (in its entirety) as well as a telephonic assessment interview of the Veteran conducted in September 2020. Id. The private examiner opined that the Veteran’s service-connected PTSD, tinnitus, and hearing loss have at least as likely as not caused the Veteran to be unable to secure and follow substantially gainful employment, since at least July 2010 to the present. Id. The opinion provided the reasoned rationale that the Veteran’s impairments, as reported by the Veteran and lay accounts of record, and corroborated by supporting medical evidence, manifest to such a degree that the Veteran is unable to complete even unskilled sedentary employment due to his inability to interact appropriately with others, including coworkers and supervisors. The Veteran’s inability to concentrate and difficulty hearing accurately were also reasons cited for the opinion that unskilled sedentary work is beyond the Veteran’s current abilities despite decades worth of experience and employment as a skilled electrician.

Furthermore, the vocational assessment report proffered an opinion that the Veteran’s experienced psychiatric symptoms, including anxiety, flashbacks, intrusive thoughts, mood swings, anger, and hypervigilance interfere with the Veteran’s ability to focus on work tasks due to the need for consistent and necessary unscheduled breaks, causing a slowed pace of productivity deemed intolerable for employment purposes. Id. Overall, the report indicates that the Veteran’s service-connected disabilities preclude him from meeting industry standards of adequate pace and productivity, thereby preventing him from being able to secure and follow substantially gainful employment at any skill or exertional
skilled sedentary work is beyond the Veteran’s current abilities despite decades worth of experience and employment as a skilled electrician.

Finally, a social security earnings statement was submitted on behalf of the Veteran in November 2020. This record depicts that the Veteran has not earned taxable wages since 2009.

Considering the Veteran’s employment history, education, skill, and training, and evaluating the Veteran’s physical and mental limitations as described above, the Board finds that the record evidence demonstrates that the Veteran’s service-connected disabilities rendered him unemployable or unable to secure and follow substantially gainful employment from at least July 13, 2010. Accordingly, TDIU on a schedular basis from July 13, 2010, is granted.

DEBORAH W. SINGLETON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board E. Sutherell, 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.

Analyze in VA Law Explorer