Citation Nr: 1754160	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-08 739	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Stephen Vaughn, Agent


ATTORNEY FOR THE BOARD

N. Laroche, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the United States Army from August 1969 to September 1971 and from April 1979 to April 1982.
This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the New York, New York Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO denied entitlement to a TDIU. The Veteran filed a timely notice of disagreement (NOD) in October 2012, and subsequently filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2014. 

In December 2015, the Board remanded the claim for further development. 


FINDING OF FACT

The Veteran's service-connected disabilities preclude the ability to secure or follow substantially gainful employment.


CONCLUSION OF LAW

The criteria for a TDIU are met.  38 U.S.C §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.16, 4.25 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Board notes that VA has certain duties to notify and assist the Veteran.  See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  Given the favorable actions taken below concerning the claim for entitlement to a TDIU, the Board will not discuss further whether those duties have been accomplished.


II. Legal Principles and Analysis

Under 38 C.F.R. § 4.16 (a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more.  
Disabilities resulting from a common etiology will be considered as one disability for TDIU purposes.  38 C.F.R. § 4.16 (a)(2).

Preliminarily, the Veteran is service-connected for post-traumatic stress disorder (PTSD), rated as 70 percent disabling; and ischemic heart disease (IHD) rated as 60 percent disabling.  His combined rating is 70 percent from October 2010 and 90 percent from February 2014.  Therefore, the Veteran meets the minimum schedular requirements for TDIU benefits.  38 C.F.R. § 4.16(a).

An April 2010 treatment note from a social worker noted that the Veteran had barriers to employment that included his psychiatric problems.  

In October 2010, the Veteran submitted a VA Form 21-4192 where he reported that he previously had various jobs in land surveying.  He indicated that the last date worked was in May 2007 and he has been unemployed since.  

Records from the Social Security Administration (SSA) reflect that the Veteran reported a work history that included instrument technician, engineer/land surveyor, roofing, and contracting.  He reported that he frequently lifted weight over 50 pounds and would have to walk, stand, climb, and crouch often.  

In February 2012, the Veteran underwent a VA examination for his PTSD.  The examiner 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 with normal routine behavior, self-care, and conversation.  He also reported that the Veteran had difficulty in establishing and maintaining effective work and social relationships; as well as difficulty in adapting to stressful circumstances, including work or work-like settings.  At the time of the examination, the Veteran reported that after discharge, it was "hard to hold jobs."  Specifically, he reported that he was more combative and irritable with people.  He reported that as a result, he was fired from five jobs (contracting) over a one year period.  The Veteran reported that he reenlisted in 1980 in order to attend school and received an Associate's degree in computerized architectural design.  He subsequently found employment with an architectural firm for nine years.  However, he had conflict with subordinates during his time there and felt that when there was a reduction in force, this was why he was "the first to go."  He also reported that he stopped working in 2007 and suffered a major heart attack in 2011.  

In a December 2013 VA examination report regarding the Veteran's IHD, the examiner noted that the Veteran's IHD did not impact his ability to work.

In February 2014, the February 2012 psychologist provided an addendum to the February 2012 VA examination report.  He reported that the Veteran's career ended due to physical reasons (peripheral artery disease) and not a result of difficulty coping due to PTSD symptoms.  He stated that prior to this point, the Veteran's career was highlighted by rejoining the military and honorable discharge, suggesting that he was able to perform all required duties; and an Associate's degree in which he subsequently gained employment with an architectural firm for nine years.  The examiner stated that the Veteran did not indicate that PTSD symptoms affected him in the workplace to a certain degree, noting that he was irritable and combative with others; however, he found that the severity was clearly not of a degree where he was unable to be gainfully employed, as evidence by both his honorable discharge and nine years of employment with one firm.  Based on that information, the examiner found that the Veteran's functional limitations of irritability and combativeness are not severe enough to render him unemployable.  

In May 2016, an addendum opinion to the April 2016 VA examination IHD report noted that the Veteran's ejection fraction (EF) of 35 percent, as well as his metabolic equivalent of task (MET), would render the Veteran unemployable for work requiring exertional effort but not for sedentary employment.

In June 2016, the Veteran's representative submitted a statement on his behalf, where he reported that the April 2016 VA examiner was aware that the Veteran experienced not only frequent chest pain, but also side effects to the heart medication that consisted of, but not limited to, dizziness, fatigue, and shortness of breath.  Additionally, the Veteran's previous employment consisted of being a roofer for 25 to 30 years and a land surveyor for approximately 10 years, and there was no evidence that the Veteran was capable of obtaining and retaining light sedentary work based upon his work experience.  

Upon review of the evidence of record, the Board finds that a TDIU is warranted.  The Veteran's record indicates that he has an Associate's degree.  The Veteran reported that he is unable to sustain gainful employment due to his physical limitations and need for medication.  These statements are competent and credible and the Board notes that whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert").

The Veteran has not been employed since 2007.  Although the Veteran has a level of education that would enable him to perform sedentary work, he reported, through his representative, that his medications prevented him from gaining employment.  Furthermore, the Veteran is not trained in any type of employment that would be compatible with performing with his current service-connected disabilities, as stated by his representative and indicated by his work history.  The work in which the Veteran is trained to do consists of frequent heavy lifting, walking, standing, climbing, and crawling.  While the VA examiners separately indicated that the Veteran's psychiatric and physical disabilities did not each render the Veteran unemployable, neither considered the combined effects of the disabilities.  Moreover, while the April 2016 VA examiner indicated in May 2016 that the Veteran's IHD did not prevent him from performing sedentary work, he did not define sedentary or explain why the Veteran was capable of performing such work. More significantly, the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  Given the Veteran's relatively limited education and occupational history and the significant limitations caused by the combination of his physical and psychiatric disabilities, the Board finds that he is unable to secure and follow a substantially gainful occupation due to his service connected disabilities.  Entitlement to a TDIU is therefore warranted.  38 C.F.R. § 4.16(a).  


ORDER

Entitlement to a TDIU is granted, subject to the regulations governing the award of monetary benefits.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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