Case 22060299

Summary

The Veteran, who served from March 1966 to March 1969 and again from April 1973 to October 1974, appeals the denial of Total Disability based on Individual Unemployability (TDIU). The Veteran is service-connected for PTSD at 70% and tinnitus at 10%, for a combined rating of 70%. The Board found the evidence to be in approximate balance regarding whether the Veteran's service-connected disabilities prevent substantially gainful employment. Key evidence included multiple VA examinations. A December 2015 examination noted disrupted sleep and symptoms of depression, anxiety, and concentration difficulties that would interfere with work. An August 2020 examination confirmed the PTSD diagnosis and found that the Veteran's mental health symptoms significantly interfered with social and occupational functioning, impacting reliability and productivity. The Board found this latter examination highly probative, noting that the Veteran's symptoms, including hallucinations, depression, anxiety, and sleep disruption, likely render him incapable of consistent employment. While the Veteran failed to complete VA Form 21-8940 when requested, the Board found the weight of the evidence favored the Veteran, granting entitlement to TDIU.

Rationale

Evidence in approximate balance.; August 2020 VA exam highly probative.; Weight of evidence favored Veteran.

Full Decision Text

Citation Nr: 22060299
Decision Date: 10/27/22	Archive Date: 10/26/22

DOCKET NO. 12-12 365
DATE: October 27, 2022

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

FINDING OF FACT

The evidence is in approximate balance as to whether the Veteran's service-connected disabilities have prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active military service from March 1966 to March 1969, and from April 1973 to October 1974. The appellant is the Veteran's lawful surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO) which assigned a 30 percent rating for the Veteran's PTSD disability.

By way of procedural background, the record indicates that, during his lifetime, the Veteran filed a claim for an increased rating for a PTSD disability. See December 2015 rating decision (granting the Veteran an increased rating of 50 percent).  The Veteran was then granted a 70 percent rating in April 2019, with a rating in excess of 70 percent and the issue of TDIU remanded to the Agency of Original Jurisdiction (AOJ).  In October 2020, the Board denied a rating in excess of 70 percent for PTSD and denied entitlement to TDIU.  Following this decision, the Veteran appealed both issues to the United States Court of Appeals for Veterans' Claims (CAVC).  During the appeal, in February 2021, the Veteran unfortunately passed away.  Substitution was granted by CAVC in December 2021; as such, the claim continues with the appellant as a substitute claimant and returns to the Board on remand. 38 U.S.C. § 5121A (2012).  The Board also notes that pursuant to the Joint Motion for Partial Remand (JMPR), the Claimant has abandoned her appeal of the Board's denial of the Veteran's claim for entitlement to a disability rating in excess of 70 percent for PTSD; as such, only the issue of TDIU remains on appeal.

TDIU Laws and Analysis

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable as 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. 38 C.F.R. § 4.16 (a); see also 38 C.F.R. §§ 3.340, 3.341.

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id.  Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).

The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (citing Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Factors to be considered are the veteran's education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (201
1).

The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (citing Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Factors to be considered are the veteran's education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015).

In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 (b) 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 following: 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 other words, the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment.

The Veteran contends that he is entitled to TDIU due to his service-connected disabilities, which have prevented him from being able to secure and maintain gainful employment.

Currently, the Veteran is service-connected for the following disabilities, with the following ratings: 70 percent for PTSD and 10 percent for tinnitus.  His total rating is 70 percent disabling.  Thus, the Veteran currently meets the schedular criteria for a TDIU.

Upon further review of the record and the JMPR, the Board finds that the evidence is in approximate balance as to whether the Veteran's service-connected disabilities have prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience.

In a March 2010 PTSD examination, the Veteran reported being employed full-time in construction, specifically carpentry.  The Veteran further reported that he has worked in construction for more than 20 years.

In a May 2011 VA treatment record, the Veteran reported working in construction.

In a December 2015 examination, the Veteran reported that he was retired.  The Veteran further reported that he worked as a mechanic and at various manufacturing plants.  The examiner noted that the Veteran's sleep is so disrupted that he is usually fatigued at work, and that the Veteran would likely miss significant periods of work due to his PTSD.  The examiner opined that the Veteran's symptoms of depression which would interfere with productivity.  The examiner further noted that decreased memory and concentration and the ability to get along with others will interfere with his ability to work.

The Veteran had another examination for his PTSD in August 2020.  The Veteran reported that he obtained a high school diploma and enrolled in college for a while but did not complete a degree.  The Veteran stated that he worked as a paper machinist for 18 months.  The Veteran further reported that he worked as an armed security guard for 10 years.  Additionally, the Veteran stated that the last job held was for 11 years, working as a carpenter, and that he hasn't worked in over 6 years.  The Veteran also stated that he was last in a relationship 15 years prior and he avoids gatherings and interacting with other.  The examiner observed during the examination that while the displayed adequate social skills and was alert and oriented top all spheres, the Veteran appeared "disheveled," and his mood was "anxious," with "fluctuating attention and concentration."  

At the appointment, the examiner confirmed the Veteran's PTSD diagnosis and opined that the Veteran's mental health symptoms "significantly interfere with his social and occupational functioning causing reduced reliability and productivity".  The examiner stated that the Veteran's "recurrent distressing dreams precipitates intermittent periods of depression, which in turn affects his motivation and productivity."  The examiner further stated that the Veteran's "[d]epressed mood and irritability have a direct impact on cognition, interfering with the ability to rapidly analyze situations, and find solutions to problems."  Additionally, the examiner noted that "periods of anxiety and his inability to adapt to stressful situations increase his sleeping problems."  The examiner concluded that the Veteran "experiences attention and concentration difficulties, which will significantly impact his work reliability and productivity."

The Board finds the August 2020 examination to
's mental health symptoms "significantly interfere with his social and occupational functioning causing reduced reliability and productivity".  The examiner stated that the Veteran's "recurrent distressing dreams precipitates intermittent periods of depression, which in turn affects his motivation and productivity."  The examiner further stated that the Veteran's "[d]epressed mood and irritability have a direct impact on cognition, interfering with the ability to rapidly analyze situations, and find solutions to problems."  Additionally, the examiner noted that "periods of anxiety and his inability to adapt to stressful situations increase his sleeping problems."  The examiner concluded that the Veteran "experiences attention and concentration difficulties, which will significantly impact his work reliability and productivity."

The Board finds the August 2020 examination to be highly probative in determining whether the Veteran's service-connected disabilities prevent the Veteran from securing and maintaining substantially gainful employment. The examiner reviewed the claims file, conducted a telehealth examination, and provided a well-reasoned rationale for her conclusion. 

When taken in conjunction with the other evidence present in the record, such as the Veteran on occasion experiencing auditory and visual hallucinations, impacting his ability to concentrate (see February 2014 VA treatment record and June 2014 VA treatment notes); depression, interfering with the Veteran's productivity (see December 2015 VA examination); and sleep deprivation, causing fatigue during the workday and absences (see December 2015 VA examination), the symptoms and observations noted in the August 2020 examinations demonstrate the Veteran likely would not be capable of performing the physical and mental acts required by employment, particularly on a consistent basis.  While periods of employment are noted in the record, the Board finds that the evidence is in approximate balance as whether the Veteran's service-connect disabilities have prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience.

As the Board noted in the October 2020 decision, in compliance with the Board remand issued May 2017, the RO asked the Veteran to compete a VA Form 21-8940 in April 2018; however, the Veteran did not respond.  The Veteran was again asked to complete a VA Form 21-8940 in October 2019.  The Veteran did not respond.  While not fatal to the claim, the failure to submit VA Form 21-8940 has precluded potentially favorable evidence as a completed form could have allowed for verification of the Veteran's work status. See Wood v. Derwinski, 1 Vet. App. 190, 193 (stating that the duty to assist is not always a one-way street, or a blind alley, and that a veteran must be prepared to cooperate with VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting the claim).

Accordingly, examining the evidence provided in the record, the Board finds that the weight of the evidence is in favor of the Veteran.  Therefore, the Board finds that entitlement to TDIU warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is granted.  

 

 

Romina A. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Makarenko, Darya A.

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.