Case A19002849

MICHAEL PAPPAS · 2019 · Case ID: A19002849

GRANTED

Summary

The veteran, who served from August 2004 to April 2005 and July 2005 to December 2010, appeals the denial of entitlement to a total disability evaluation based on individual unemployability (TDIU) from August 19, 2016, to November 4, 2018. The veteran claims that his service-connected posttraumatic stress disorder (PTSD) prevents him from securing or maintaining substantially gainful employment. The Board reviewed the veteran's service records, VA examination findings, and lay statements. A January 2019 VA PTSD examination noted significant occupational and social impairment due to worsening anxiety and depression, and the examiner was unable to distinguish the symptoms of the service-connected PTSD from other psychiatric conditions. The veteran's lay statements, corroborated by his employment history and examiner observations, were found credible by the Board. The Board found that the veteran's service-connected psychiatric disabilities alone were of sufficient severity to produce unemployability, noting that while he could periodically find employment, his symptoms prevented him from maintaining positions for extended periods. The Board resolved all doubt in the veteran's favor, granting TDIU from August 19, 2016, to November 4, 2018.

Rationale

Service-connected PTSD and associated psychiatric disabilities preclude substantially gainful employment.; Veteran's lay statements found credible and consistent with employment record and examiner observations.; Benefit of the doubt resolved in veteran's favor.

Special Benefit

TDIU

Docket No.

190401-7971

Full Decision Text

Citation Nr: A19002849
Decision Date: 11/15/19 Archive Date: 11/15/19

DOCKET NO. 190401-7971
DATE: November 15, 2019

ORDER

Entitlement to a total disability evaluation based on individual unemployability (TDIU) from August 19, 2019 to November 4, 2018, is granted.

FINDING OF FACT

Due to the Veteran’s service-connected PTSD and associated psychiatric disabilities, the Veteran has been unable to maintain gainful employment consistent with his level of education and employment history from the date of his claim, August 19, 2019 to the effective date from which TDIU was previously awarded, November 4, 2018.

CONCLUSION OF LAW

Resolving all doubt in the Veteran’s favor, the criteria for entitlement to a TDIU, from August 19, 2016 to November 4, 2018, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2018)

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 2004 to April 2005, and again from July 2005 to December 2010.

The Board notes that the rating decision on appeal was issued in November 2016. In April 2019, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). While the Veteran submitted three different VA Forms 10182, Decision Review Request: Board Appeal (Notice of Disagreement), for the same TDIU issue but on different dates, which originally resulted in separate docketed appeals for the same issue, the Board has used the earliest submitted form and its docket number for this appeal to give the greatest advantage to the Veteran in the characterization and interpretation of his direct review appeal.

As the Veteran is unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board is cognizant of correspondence in the claims file between the Veteran and a private law firm unrelated to the claim on appeal, but the Veteran has not completed a VA Form 21-22 or 21-22a regarding the appointment of a representative, and the person who signed that correspondence is not a VA-accredited attorney or agent. As such, the Board considers the Veteran to be currently unrepresented.

The Board notes that TDIU was already granted for the Veteran in a March 2019 rating decision, effective from November 4, 2018. Since the claim for TDIU was originally made in August 2016, the Board has therefore recharacterized this appeal to be for a TDIU from August 19, 2016 forward, the date of the original TDIU claim, to the existing effective date of November 4, 2018, as noted above.

The Board also notes the presence of a separate appeal in the legacy appeal system regarding entitlement to service connection for a traumatic brain injury. However, that appeal will not be discussed here because it remains in a separate appeal system, and it has not yet been certified before the Board at the time of this decision.

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018).

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Entitlement to a total disability evaluation based on individual unemployability (TDIU) from August 19, 2016 to November 4, 2018.

The Veteran contends he is unable to secure or maintain substantially gainful employment due to his service-connected posttraumatic stress disorder (PTSD). The Veteran originally made a claim for TDIU along with an appeal for an increased rating for service-connected PTSD on August 19, 2016.

A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014).

To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v
itlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master degree in education and his part-time work as a tutor).

When considering a TDIU, the overriding issue is unemployability, not unemployment. The sole fact that a veteran is unemployed for non-service- connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant. A high schedular rating, in itself, is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can, in fact, find employment. See 38 C.F.R. §§ 4.1, 4.15. As noted, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s employment history, his educational and vocational attainment, and his particular disabilities are to be considered in making a determination on unemployability.

The VA General Counsel has concluded that VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated as totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also held that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991).

“Substantially gainful employment” contains economic and noneconomic components; 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 73-74.

As noted above, in determining whether the veteran is entitled to individual unemployability, neither his non-service-connected disabilities
include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 73-74.

As noted above, in determining whether the veteran is entitled to individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, in deciding the claim, the Board may not favorably consider the effects of the non-service-connected disabilities with respect to their degree of interference with his employability.

Indeed, the Court stated that in order for a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994).

A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3.

As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. However, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.10.

Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Schedular TDIU

A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a).

For the purpose of establishing 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, or of one or both lower extremities; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g. orthopedic); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id.

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). Consideration may be given to his or her level of education, special training, and previous work
, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g. orthopedic); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id.

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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a “living wage.” See Moore v. Derwinski, 1 Vet. App. 356 (1991).

In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

The Veteran is claiming TDIU on the basis that his service-connected disability of PTSD prevents him from securing or following any substantially gainful occupation. The Veteran is service connected for PTSD with an evaluation of 70 percent effective from December 9, 2010, and tinnitus with a 10 percent evaluation from January 5, 2006 forward. The Veteran has a combined evaluation of 70 percent from December 9, 2010 forward. Since the Veteran has a single service-connected disability ratable at 60 percent or more, the threshold schedular requirements of TDIU are met for the entire period on appeal. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

Accordingly, the remaining question is whether the Veteran’s service-connected disabilities preclude gainful employment for the applicable period on appeal. TDIU has been granted for the Veteran effective from November 4, 2018 forward. The Veteran made his original claim for a TDIU on August 19, 2016, the same date he also made a claim for an increased evaluation for his service-connected PTSD, and as such, the Board considers that August 19, 2016 date to be the earliest possible effective date for a TDIU claim. See 38 C.F.R. § 3.400(o); Rice v. Shinseki, 22 Vet. App. 449, 456 (2009); see also Hurd v. West, 13 Vet. App. 449 (2000).

The Veteran completed a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability in August 2016, and updated his original application with an additional submission in November 2018. Here, the Veteran indicated he had not been under a doctor’s care for the previous 12 months or underwent any period of hospitalization. His military occupational specialty during active service was that of a counterintelligence agent. He indicated that he had 4 years of college and had completed a bachelor’s degree in sports and health sciences in 2015. On his most recent 21-8940, he indicated he last worked as an emergency medical technician on November 3, 2018, where his highest gross earnings per month were $2,500.

In May 2019, the Veteran provided a summary of his post-service employment following separation from active service in December 2010. He indicated he was a “stay-at-home” father while his spouse worked outside the home. The Veteran
the previous 12 months or underwent any period of hospitalization. His military occupational specialty during active service was that of a counterintelligence agent. He indicated that he had 4 years of college and had completed a bachelor’s degree in sports and health sciences in 2015. On his most recent 21-8940, he indicated he last worked as an emergency medical technician on November 3, 2018, where his highest gross earnings per month were $2,500.

In May 2019, the Veteran provided a summary of his post-service employment following separation from active service in December 2010. He indicated he was a “stay-at-home” father while his spouse worked outside the home. The Veteran also indicated he was pursuing a bachelor’s degree during this period, which he completed in 2015 and that he began seeking outside employment in December 2016. He indicated that he returned to outside employment in March 2017 working as a security officer with both patrol and administrative duties, which lasted until July 2017. The Veteran then indicated he worked for a physical fitness business as an in-home personal trainer from July 2017 to September 2017. The Veteran’s next employment was in a plumbing supply warehouse from October to December 2017. The Veteran then obtained training as an emergency medical technician and worked in that position from August 2018 through November 2018.

During the period on appeal, the Veteran received a VA review PTSD examination for his service-connected PTSD in January 2019. With regard to occupational and social assessments, this examiner summarized the Veteran as having occupational and social impairment with deficiencies in most areas, such as work, school, as family relations. The examiner noted the Veteran has been unemployed since November 2018 and he reported difficulty maintaining employment due to worsening anxiety and depression. This examiner noted additional diagnoses of major depressive disorder and generalized anxiety disorder, which are not currently service-connected, but the examiner also specifically noted she was unable to distinguish the symptoms of the Veteran’s service-connected PTSD from his depression and anxiety. When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998).

The Veteran has provided multiple statements where he states that he was discharged from his jobs due to his PTSD symptoms, and that his symptoms of anxiety and depression prevent him from maintaining gainful employment. The Board finds the Veteran credible in that his statements are consistent over time, are corroborated by his employment record, and from observations from VA psychiatric examiners and treatment providers.

Accordingly, the only remaining question is whether the Veteran’s service-connected disabilities preclude all forms of gainful employment, considering the Veteran’s level of education and work history.

The ultimate responsibility for determining the effects of disabilities on the question of employability rests with the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3.

In this case, the Board finds that the Veteran is unemployable due to his service-connected psychiatric disabilities for the period on appeal. 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 reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

Here, the Board notes that while the Veteran has been able
The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

Here, the Board notes that while the Veteran has been able to periodically find employment during the period on appeal, that due to his service-connected psychiatric symptoms, he is not capable of performing the mental acts as required by employment, resulting in his discharge from all of the positions during the appeal period into the present. Since December 2016 to November 2018, the Veteran has had five different jobs ranging from security officer to swim instructor but his psychiatric symptoms prevent him from maintaining any position of employment for longer than a few months at a time. The Veteran’s most recent VA examiner noted that the Veteran “freaks out,” forgets how to do things, and “zones out” at work, which resulted in forced resignations or discharge from his attempts at employment. The examiner noted the Veteran’s anxiety and depression have worsened since the previous 2013 VA examination and contribute to significant occupational and social impairment.

In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims has indicated that, in essence, the unemployability question, that is, the veteran’s ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 83 (1991). After considering all of the medical and lay evidence, the Board finds that the Veteran’s psychiatric symptoms prevent him from maintaining substantially gainful employment.

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Therefore, affording the Veteran all benefit-of-the-doubt, the Board finds that the Veteran is unable to perform the mental acts required for substantially gainful employment due to his service-connected disabilities, and has been so unemployable for the period since the date of his claim on August 19, 2016. Accordingly, a TDIU is granted from August 19, 2019 to November 4, 2018.

MICHAEL A. PAPPAS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board J. Setter, 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.

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