Case A22022756

ROMINA A. CASADEI · 2022 · Case ID: A22022756

GRANTED

Summary

The Veteran, an Army Veteran who served from August 1967 to August 1969, including combat in Vietnam, appeals the denial of Total Disability based on Individual Unemployability (TDIU). The Veteran has service-connected PTSD (50%), diabetic neuropathy in all four extremities (20% each), and tinnitus (10%), resulting in a combined rating of 90%. The Veteran previously worked as a corrections officer and grievance manager but has been unable to find employment since April 2017. The Board found the evidence in approximate balance regarding unemployability. A private vocational assessment by Vargas Vocational Consulting concluded the Veteran was unemployable due to PTSD and neuropathy, noting significant anxiety, irritability, memory issues, and physical limitations affecting his ability to sit, stand, walk, and perform tasks. The assessment also highlighted difficulties with concentration and interpersonal interactions due to PTSD and neuropathy. The Board found this private assessment highly probative, noting the RO did not provide refuting evidence. While a recent VA PTSD exam noted some occupational impairment, the Board found the private assessment more persuasive in concluding the Veteran's combined disabilities preclude gainful employment. Granting the Veteran the benefit of the doubt, the Board found him unemployable and granted entitlement to TDIU.

Rationale

Veteran's combined rating of 90% meets schedular criteria for TDIU.; Private vocational assessment found Veteran unemployable due to PTSD and neuropathy.; Board found private assessment probative and RO did not refute it.; Benefit of the doubt afforded to Veteran due to approximate balance of evidence.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

210323-145702

Full Decision Text

Citation Nr: A22022756
Decision Date: 11/10/22 Archive Date: 11/10/22

DOCKET NO. 210323-145702
DATE: November 10, 2022

ORDER

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

FINDINGS OF FACT

1. The Veteran has service-connected post-traumatic stress disorder (PTSD) evaluated at 50 percent disabling; diabetic neuropathy in his upper left, upper right, lower left, and lower right extremities evaluated at 20 percent disabling each; and tinnitus evaluated at 10 percent disabling.

2. The evidence is in at least approximate balance as to whether the Veteran is unable to secure gainful employment due to his service-connected disabilities.

CONCLUSION OF LAW

The criteria for entitlement to TDIU has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served honorably in the U.S. Army from August 1967 to August 1969. The Veteran saw combat while deployed to the Republic of Vietnam.

This matter comes before the Board of Veterans Appeals (Board) from a March 2021 Department of Veteran's Affairs (VA) Regional Office (RO) rating decision reopening the Veteran's claim for individual unemployability yet continuing denial. The Veteran submitted a Notice of Disagreement that same month, electing for Direct Review. The matter is now before the Board for adjudication.

The Board notes that the Veteran submitted claims for TDIU which were denied in June 2020 and December 2020 respectively due to evidence submitted outside of evidentiary windows. The Veteran submitted a Supplemental Claim and new evidence in March 2021, leading to the March 2021 rating decision.

TDIU Laws and Analysis

Under the applicable criteria, total disability ratings for compensation based upon 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 disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991).

In determining whether a veteran is entitled to a TDIU, neither his or her nonservice-connected disabilities nor age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16.

Entitlement to individual unemployability is granted

The Veteran maintains throughout his appeal that he is unable to secure gainful employment due to his service-connected disabilities.

The Veteran has the following service-connected disabilities: PTSD, evaluated at 50 percent disabling; diabetic neuropathy in his upper left, upper right, lower left, and lower right extremities evaluated at 20 percent disabling each; tinnitus evaluated at 10 percent disabling. The Veteran is also service-connected hearing loss which is evaluated at 0 percent disabling. The Veteran's combined service-connected disability rating is 90 percent as of December 20, 2019. See November 2021 Rating Decision Codesheet. As such, he meets the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a).

Following service, the Veteran was gainfully employed as a corrections officer with the California Department of Corrections and Rehabilitation, retiring in 2001 as a Corrections Lieutenant. Following his retirement, the
upper left, upper right, lower left, and lower right extremities evaluated at 20 percent disabling each; tinnitus evaluated at 10 percent disabling. The Veteran is also service-connected hearing loss which is evaluated at 0 percent disabling. The Veteran's combined service-connected disability rating is 90 percent as of December 20, 2019. See November 2021 Rating Decision Codesheet. As such, he meets the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a).

Following service, the Veteran was gainfully employed as a corrections officer with the California Department of Corrections and Rehabilitation, retiring in 2001 as a Corrections Lieutenant. Following his retirement, the Veteran was employed as a grievance manager for the California Correctional Supervisors Organization from March 2001 until April 2017. See May 2020 Request for Employment Information. While the Veteran was employed part-time as a grievance manager, he was still gainfully employed for VA compensation purposes. The Veteran has been unable to find work since his April 2017 retirement. See Veteran's TDIU Application (VA Form 21-8940).

The Board finds that the evidence is at least in approximate balance as to whether the Veteran is unable to secure gainful employment due to his service-connected disabilities. Central to this finding is the Veteran's private vocational assessment by Vargas Vocational Consulting which found that the Veteran was unemployable and that his unemployability was as likely as not due to the Veteran's service-connected PTSD and neuropathy. See February 2021 Medical Treatment Record. Specifically, the examiner noted that the Veteran was anxious, irritable, and preoccupied due to his PTSD. The examiner noted that the Veteran that the Veteran was prone to flashbacks and angry outbursts, needing extra time to calm down. Lack of sleep was noted in the examination, requiring the Veteran to take naps throughout the day, hampering production. The examiner noted other symptoms such as depressed mood, suspiciousness, mild memory loss, impairment of short- and long-term memory, and suicidal ideation. Overall, the examiner made a conclusion that the Veteran's inability to interact appropriately with others would more likely than not eliminate his ability to maintain competitive employment.

This examiner in the above vocational assessment also noted inability to secure employment due to the Veteran's other service-connected disabilities. Notably, the Veteran's diabetic neuropathy in his upper left, upper right, lower left, and lower right extremities hampered his ability to sit, stand or walk for greater than 30 minutes, requiring frequent position changes and hampering productivity. The Veteran's required his legs to be elevated to avoid position changes, which the examiner noted was an accomodation not typically allowed in a competitive work environment. The examiner noted the Veteran's difficulty in reaching above his head and the Veteran's tendency to drop objects due to numbness in the Veteran's upper extremities. The examiner concluded that the accommodations needed for the Veteran would likely erode available positions at the sedentary exertional level and would further preclude him from meeting the exertional requirements of even sedentary employment.

The examiner also noted the Veteran's tinnitus, which impacted his ability to hear or understand conversation or listen to background noise. In his conclusion, the examiner stated the Veteran would have difficulty understanding instructions and difficulty concentrating, impacting his ability to maintain productivity expected by employers.

The Board finds the vocational assessment by Vargas Vocational Consulting highly probative as it took into consideration the resulting employment difficulties from the Veteran's various disabilities and Veteran's prior work history. The examiner made a conclusion weighing such resulting employment impairments that the Veteran will remain unemployable due to his various service-connected disabilities.

Though the RO disagreed with the assessment noted by Vargas Vocational Consulting, it did not elaborate as to what specific evidence would refute the examination. The RO stated that the Veteran did not show he is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, which is in contest with the February 2021 vocational consultation.

The RO stated that the overall evidence of record from treatment records and the VA medical examinations fails to show unemployability due to service-connected conditions without stating which record. The most recent VA PTSD examination conducted in February 2020 noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. This VA PTSD examiner noted that the Veteran maintained periods of times when his ability to perform tasks, occupationally and socially, was impaired or decreased due to the symptoms he experiences from his PTSD. Thus, even the Veteran's latest PTSD examination supported some degree of functional impact due to the Veteran's PTSD.

Since his last TDIU determination
vocational consultation.

Since his last TDIU determination, the Veteran's diabetic neuropathy in upper left, upper right, lower left, and lower right were increased in rating from 10 percent each to 20 percent each. These increased ratings support a higher degree of employment impairment.

Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to secure gainful employment due to his service-connected disabilities. Based on the Veteran's work history and educational level the Veteran is unemployable in a competitive workplace. Accordingly, the appeal is granted.

Romina A. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Berryhill, Michael 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.

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