Citation Nr: 1749055	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-25 491	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at Law


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

K. Brozyna, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1967 to August 1969, including service in the Republic of Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  

In January 2014, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

These matters were remanded in April 2014.  Following further development by the agency of original jurisdiction (AOJ), these issues were returned to the Board for further appellate review.  In December 2015, the Board denied entitlement to an increased rating in excess of 70 percent for post-traumatic stress syndrome (PTSD) and entitlement to TDIU.  

The Veteran subsequently appealed the December 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In a February 2017 Memorandum Decision, the Court vacated part of the December 2015 Board's decision denying entitlement to TDIU finding that the Board failed to provide an adequate statement of reasons or bases to support its denial of entitlement to TDIU.  See 38 U.S.C.A. § 7104(d)(1) (West 2014); Allday v. Brown, 7 Vet. App. 517, 527 (1995).  The Court indicated the Board failed to discuss any of the Veteran's service-connected disabilities other than PTSD in its TDIU analysis, let alone discuss whether his service-connected disabilities, taken together, rendered him incapable of maintaining or securing substantially gainful employment.  38 C.F.R. § 4.17(a) (2016).  The Board's denial of entitlement to a disability rating greater than 70 percent for PTSD, was held to have been abandoned by the Veteran and was dismissed by the Court.  As such, that issue is no longer on appeal.    



This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems.


FINDING OF FACT

The evidence is in relative equipoise as to whether the Veteran's service-connected PTSD with depressive disorder, renders him unable to secure and follow substantially gainful employment.  


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.19 (2016).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In light of the fully favorable decision as to the issue of entitlement to a TDIU due to service-connected disabilities, no further discussion of compliance with VA's duty to notify and assist as to that issue is necessary.  Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).


A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran 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, this disability shall be ratable at 60 percent or more, or 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. §§ 3.340, 3.341, 4.16(a).

If the claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on a different basis.  It is the established policy of the VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Therefore, the rating boards are required to submit to the Director, Compensation Service, for extra-schedular consideration all cases Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  Id.

In determining whether a Veteran is unemployable for VA puposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; See Also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000).  A Veteran need not show 100 percent unemployability in order to be entitled to TDIU.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  

The Veteran contends that the evidence of record clearly indicates he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.  See August 2017 Brief at 2.  His work history is primarily as a landscaper and he received a GED while in service.  See July 2017 TDIU Vocational Assessment Report at 3; See March 2013 VA Examination at 31.


The Veteran's PTSD with depressive disorder has been rated at 70 percent disabling throughout the entire appeal period.  His residuals of open fracture left tibia and fibula have ranged from 20 percent to 0 percent disabling throughout the entire appeal period.  In addition, the Veteran's residuals of dislocation of the fourth and fifth metatarsals left foot have been rated at 0 percent disabling throughout the entire appeal period.  Based on the one disability of PTSD, which is ratable at 60 percent or more, and a combined rating of 70 percent, he meets the minimum scheduler criteria for a TDIU under 38 C.F.R. § 4.16(a).

The remaining question is whether the Veteran is unable to secure and follow a substantially gainful occupation solely due to his service-connected disabilities.

In November 2007, the Veteran filed his claim for a TDIU, stating that he left his job from Regional Transportation District (RTD) due to his PTSD.  See November 2007 Veteran's Application for Increased Compensation Based on Unemployability.

Subsequently, in March 2008, the Veteran's previous employer RTD indicated the Veteran worked as a custodian / landscaper and was involuntarily terminated.  See March 2008 Request for Employment Information in Connection with claim for Disability Benefits.  This same employer in December 2008 indicated the Veteran was terminated because this was a seasonal position.  See December 2008 Request for Employment Information in Connection with claim for Disability Benefits.


In June 2008, the Veteran underwent a VA examination.  The examiner indicated the Veteran's PTSD and mental disorder symptoms are not severe enough to require continuous medications.  The examiner further noted the Veteran had occasional decreases in work efficiency or intermittent periods of inability to perform occupational tasks due to signs and symptoms but generally satisfactory functioned with regard to routine behavior, self-care, and normal conversation.  The Veteran reported to the examiner that he had to stop working in October 2007 due to becoming increasingly irritable and angry at his seasonal RTD bus driver job.  The Veteran further reported that he has had some difficulty staying with various jobs throughout the years also due to interpersonal tensions.  The examiner concluded that the Veteran does retain cognitive, emotional, and behavioral capacities which suggest that he could do simple work tasks in a loosely supervised environment where he has minimal contact with peers, supervisors, and others.  

In July 2009, the Veteran filed his formal appeal indicating his PTSD is of such severity to warrant an evaluation greater than the current 70 percent evaluation.  The Veteran further contended to have nightmares, irritability, outbursts of anger, difficulty sleeping, and problems with relationships.  He also noted that his PTSD resulted in him leaving his last employment with RTD because of continued problems with interpersonal relationships.  The Veteran concluded that his PTSD does not allow him to do simple work in a loosely supervised environment with minimal contact with peers, supervisors or others, especially considering his education and work experience.  See July 2009 Appeal to Board of Veteran's Appeals.

In the December 2009 VA examination report, the examiner opined the Veteran is able to be employed from a psychiatric standpoint.  The examiner further opined that the Veteran can engage in simple tasks in a loosely supervised environment where he has limited contact with coworkers and the public due to anger and irritation resulting from PTSD symptoms.


Subsequently, in the March 2013 examination report, the examiner opined the Veteran's service-connected PTSD limits him to simple work with routine supervision loosely applied and contact with public and coworkers somewhat limited.  The examiner further indicated that the Veteran never lost his job because of his PTSD symptoms and indeed is retired at this point in time.

In June 2013, the Veteran submitted a letter from his readjustment counselor at the Vet Center.  The Counselor indicated the Veteran has a diagnosis of PTSD and opined that the Veteran is unemployable at this time.  The Counselor concluded that his symptoms in combination make him an unlikely candidate for employment.

During his January 2014 hearing, the Veteran indicated he retired because of a mental condition and that he didn't feel comfortable dealing with so many people.  See January 2014 Hearing Tr. at 7-8.  He also reported that he does not get along with a whole lot of people, has sometimes felt like he loses control and has had to hurt someone physically, has trouble sleeping, has panic attacks, has re-imagined being back in Vietnam, and that his memory is kind of up and down.  Id. at 13-16, and 18.  His wife observed that that there are times when he seems not to make sense or doesn't seem quite oriented.  Id. at 20.  The Veteran also testified that he got his GED in the service and that he went to a trade school.  Id. at 27.  

In a June 2014 opinion, the examiner opined based on review of all records, including the Vet Center records, that it is less likely than not (less than 50-50 probability) that the Veteran's service-connected PTSD renders him unable to secure and hold substantially gainful employment.  The examiner noted it is not reasonable clinically to conclude that the Veteran, who successfully worked for decades after Vietnam, would suddenly become unemployable at the same time he retired from all work.  The examiner continued to conclude that the Veteran is capable of working in a setting where work is routine, supervision loosely applied, and contact with the public is minimal. 


In the July 2014 VA examination, the examiner noted that the Veteran's previous position was as a landscaper, a position which worked well for the Veteran because he was able to work independently and he did not have much interaction with people.  It was noted that he lost this job after testing positive for marijuana.

In an affidavit dated May 2017, the Veteran concluded that he is unable to secure and follow a substantially gainful occupation.  The Veteran noted he has not worked in any capacity since he left his job as a landscaper with RTD in 2007.  He indicated that his service-connected PTSD severely affected his ability to perform his job and that he was constantly on-edge whenever people were around him and felt like someone was going to sneak behind him and attack.  The Veteran noted that he carried a knife around just in case he needed protection and that he got into verbal altercations with his co-workers that on a few occasions became physical.  He further noted that after these altercations he would isolate himself for at least an hour or two to calm himself down and sometimes thought of attacking his co-workers because of how angry they made him.  The Veteran indicated that he was only able to perform his job because it was seasonal and that he would not have been able to maintain a full time year round role.  In discussing how PTSD affects his life, the Veteran indicated that he frequently experiences nightmares, gets only about four to five hours of sleep per night, isolates himself in the shed during the day, rarely leaves the house, and keeps his back to the wall and his eyes on the exits so that no one can sneak up behind him or keep him from leaving.  The Veteran also noted that he experiences flashbacks, is easily startled and becomes defensive, experiences angry outbursts, and continues to carry a knife at all time just in case the situation needs it.  

In the July 2017 TDIU Vocational Assessment Report, the medical examiner opined it is at least as likely as not, the Veteran has been unable to secure and follow substantially gainful employment; to include unskilled employment where contact with the general public and working in collaboration with coworkers is not required, based on his service-connected PTSD since he last worked in 2007 and continuing.  See TDIU Vocational Assessment Report dated July 2017 at 5.  See Also August 2017 Brief at 2.  

The August 2017 brief also noted the Veteran indicated he retired from his seasonal job with the Denver RTD in 2007 as soon as he was eligible, because he could not handle working with other people. 

There is no evidence that any of the assessments provided concerning the Veteran's level of occupational impairment are not competent or credible, and therefore all of the assessments are entitled to probative weight.  Further, the lay statements provided by the Veteran are both competent and credible, as they concern the lay-observable impact of his symptoms on his ability to function at work.

Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities render him unable to secure or maintain a substantially gainful occupation for which he would otherwise be qualified based on his education and occupational experience.  Notably, the totality of the record suggests that his psychiatric disability limits his ability to work in proximity with others on a regular basis, which is an essential function in many occupations.  

The final determination with respect to a Veteran's entitlement to TDIU is an adjudicatory, and not medical, function.  As noted, the Veteran has competently and continuously relayed problems with relationships and working with people, outbursts of anger, and irritability.  In addition, all of the medical evidence of record reflects an impaired ability to interact with others, primarily due to irritability and anger issues.  While the July 2014 examiner also noted the Veteran's position as a landscaper worked well for the Veteran because he did not have much interaction with the public, as pointed out in the July 2017 Vocational Assessment report, while working as a landscaper the Veteran worked as part of a team and thus even in his prior position as a landscaper was required to interact and work with others.  Further, a July 2017 examiner indicated the Veteran is as least as likely as not able to secure and follow substantially gainful employment to included unskilled work where contact with the general public and working is not required based on his service-connected PTSD since he last worked in 2007.  Based upon this new evidence, the claim for TDIU may be allowed.


Therefore, the Board resolves all reasonable doubt in the Veteran's favor and finds that he is unable to secure and follow substantially gainful occupation by reason of service-connected PTSD.  As such, a TDIU is granted. 


ORDER

Entitlement to a TDIU is granted.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.