Citation Nr: 21074618 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 12-27 095A DATE: December 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT During the period on appeal, the Veteran's service-connected disabilities rendered her unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2003 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the 50 percent disability rating for the Veteran's service-connected psychiatric disability. In July 2016, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. As the decision below is a full grant of the benefit sought on appeal, the fact that the Veteran has not been afforded an opportunity to attend another Board hearing before a currently employed VLJ does not prejudice the Veteran. In September 2016, the Board remanded the Veteran's increased rating claim for her psychiatric disability, as well as a claim for TDIU which had been raised as part and parcel of the underlying increased rating claim, for further evidentiary development. In a July 2020 Board decision, the Board, inter alia, denied entitlement to a TDIU. The Veteran appealed the July 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a joint motion for partial remand. In October 2021, the Court granted the parties' motion, vacated the portion of the July 2020 Board decision that denied entitlement to a TDIU and remanded the matter for actions consistent with the joint motion for partial remand. Entitlement to a TDIU due to service-connected disabilities is granted. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 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(a), 4.16(a). For the above purpose of 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, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is the established policy of 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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 (1990). Service connection is currently in effect for posttraumatic stress disorder (PTSD) with obsessive compulsive disorder, major depressive disorder, and attention deficit hyperactivity disorder, rated as 50 percent disabling from August 29, 2009, and as 70 percent disabling from February 2, 2011; lumbar myofasciitis (claimed as scoliosis and lower back condition), rated as 10 percent disabling from August 29, 2009, and as 20 percent disabling from May 7, 2015; snapping hip syndrome, right hip, rated as 10 percent disabling from August 29, 2009; left lower extremity radiculopathy (femoral nerve) associated with lumbar myofasciitis, rated as 0 percent disabling from May 7, 2015. The Veteran's combined disability rating is 80 percent from February 2, 2011, the date of receipt of her claim for increase. Thus, the Veteran satisfies the percentage requirements set forth in section 4.16(a) for consideration of a TDIU for the entire period on appeal. Because the Veteran satisfies the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the next question for consideration is whether her service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation. The Veteran has completed 4 years of college. She received a Bachelor's degree in psychology. She is also a licensed esthetician. She reports that she worked until December 2012 when she became too disabled to work. The Veteran reports that she stopped working due to her psychiatric, low back, and hip disabilities. See January 2016 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Available medical evidence, including VA examination reports, demonstrate limitations caused by symptoms associated with the Veteran's service-connected disabilities, notably panic attacks, memory and concentration problems, social isolation, difficulty communicating, difficulty with impulse control, obsessive-compulsive behaviors, and pain. The Veteran was afforded a VA examination for her psychiatric disability in March 2011. The examiner noted diagnoses of attention deficit hyperactivity disorder, obsessive compulsive disorder, and major depressive disorder, recurrent, in full remission. The examiner noted the following symptoms: anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and obsessional rituals which interfere with routine activities. The examiner determined that the Veteran's psychiatric disability did not impact her ability to work; however, the examiner noted that the Veteran's symptoms affected her performance in many areas, such as completing college studies and interpersonal relationships. An October 2013 VA treatment record noted the Veteran's continued reports of "depersonalization events" that were unpredictable and happened 1 to 2 times per week. However, she reported fewer depersonalization events and panic attacks over the last month; she reported having only 1 to 2 panic attacks per week, whereas she used to experience them on a daily basis. She reported that her anxiety had worsened over the past month and that she constantly worried about her Lyme disease. It was noted that the Veteran continued to endorse anxiety, feeling like she had no control, difficulty with concentration, restlessness, decrease in energy and sleep, tension, worry, and hyperarousal. See October 2013 Psychiatry Note. A February 2015 Disability Benefits Questionnaire (DBQ) for mental disorders completed by a private psychiatrist, Dr. J.B., noted the following symptoms: anxiety, chronic sleep impairment, impairment of short and long term memory, difficulty adapting to stressful circumstances, including work or a work like setting, and obsessional rituals which interfere with routine activities. The psychiatrist indicated that the Veteran experienced obsessions involving accidentally harming others, contamination, appearance, and the need for symmetry. He also noted that she experienced compulsions related to cleaning, checking, repeating, and the need to touch or tap. The psychiatrist opined that the Veteran's symptoms may improve with treatment, though she was "not likely to a degree that she could sustain employment or academic function over the next two years." See February 2015 DBQ received in February 2016. In correspondence dated in November 2015, a private physician, Dr. J.J., indicated that the Veteran was receiving ongoing clinical care for the evaluation and treatment of Lyme Borreliosis Complex. The physician indicated that he considered the Veteran to be profoundly impaired in terms of occupational functioning and that she was unable to perform work activities in any capacity at that time. See November 2015 correspondence received in December 2015. In a statement dated in January 2016, the Veteran stated that her obsessive-compulsive disorder consumed her day and left her unable to support herself financially, drive, or handle her own affairs. She indicated that she had to move back in with her parents and felt severely depressed. See January 2016 correspondence. In support of her claim, the Veteran submitted a statement received in March 2016 from J.M., a former co-worker. She indicated that the Veteran was a great esthetician and very confident. However, in December 2012, the Veteran began to indicate she did not feel right. She felt unattached from everything and could not concentrate or remember procedures. She witnessed the Veteran have panic attacks and have to touch things over and over again. She indicated that the Veteran lost her job and had been unable to work. See statement received in March 2016. Private treatment records dated in March 2016 indicate that the Veteran underwent a neuropsychological evaluation with respect to her neurocognitive functioning. Impairments were noted on one of two tests of verbal fluency, auditory learning, auditory memory, visual organization, visual memory, and dominant handed motor speed. Her mental status, confrontation naming, working memory, processing speed, perceptual reasoning, verbal comprehension, executive functioning, nondominant handed fine motor speed, and dominant handed motor dexterity were normal. Emotionally, there was strong support for somatization as well as depression and numerous day-to-day stressors and turmoil. It was noted that the Veteran experienced marked memory problems, which was concerning, especially given her very young age. It was also noted that the Veteran's profile was not purely consistent with Lyme disease or toxic chemical exposure and that there could be a combination of organic and functional factors at play. The Veteran was found to be competent, but needed supervision for medications and finances. See Neuropsychological Evaluation received in June 2017. In correspondence dated in April 2016, a private practitioner indicated that the Veteran was not employable due to symptoms of cognitive deficits. See April 2016 correspondence. In another correspondence received in April 2016, Dr. J.J. noted that the Veteran was limited to lifting and carrying 10 pounds, limited in standing, and her service-connected disabilities limited her tolerability for postural activities. See April 2016 correspondence. The Veteran was afforded VA examinations in May 2016 for her service-connected back and hip disabilities. The examiner noted diagnoses of lumbar myofasciitis and snapping hip syndrome of the right hip. Regarding her back disability, the Veteran reported pain and spasms. She reported that sitting still and walking "just a little" caused considerable pain. With regard to her hip disability, the Veteran reported stiffness, popping, and grinding in her right hip when walking or sitting down. She reported that sometimes her hip was so stiff she could barely walk. The examiner determined that the Veteran's back and hip disabilities impacted her ability to work. The examiner noted that the Veteran was limited by a partial impairment of physical activities of employment such as running, jumping, climbing, and walking long distances due to her back and hip. A June 2016 VA neuropsychological evaluation noted that the Veteran was currently not working or attending school but that she tried to cook and clean "when [she] can" while living with her parents. She reported that she did not "do a lot" as "[she] [didn't] want to go out [her] mind doesn't feel here," which made her feel uncomfortable being in public or socializing. She indicated that she no longer had close friends in the area and had no relationships currently. The Veteran reported that she did not want to live like this, explaining that she could not communicate because she felt too weird and foggy and nothing could make her adjust to this. It was noted that there was strong evidence for clinically significant difficulty with impulse control and some evidence for inattention. See June 2016 Neuropsychology Note. In correspondence dated in June 2016, Dr. J.B. indicated that there had been no significant change in symptoms related to the Veteran's obsessive-compulsive disorder and depersonalization/derealization disorder. He reiterated that the Veteran's functional impairment was likely to prevent her from maintaining regular employment over at least the next 2 years. See June 2016 correspondence from Dr. J.B. The Veteran was afforded a VA examination for her psychiatric disability in June 2016. The examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner also noted that the Veteran was significantly socially isolated and frequently agitated and irritable. The examiner determined that the Veteran was capable of performing simple and repetitive work tasks in a structured setting. He also concluded that the Veteran would be able to understand orders and follow them; however, she would not be able to provide a leadership role in a crowded setting. At the July 2016 Board hearing, noted above, the Veteran testified that she was no longer able to stay employed or attend school because her obsessive-compulsive disorder was her full-time job and controlled her. She testified that she had no friends, was unable to socialize, and felt isolated due to her psychiatric disability. The Veteran also testified that she suffered from panic attacks and experienced delusions while she was driving. She further testified that she experienced memory loss. See July 2016 Transcript of Hearing, pages 3-15. A January 2017 VA treatment record noted the Veteran's reports that she continued to experience significant problems with her obsessive-compulsive disorder. She reported that she had been working as an esthetician but her brain was "foggy" and the chambers in her mind had "shut down." She indicated that she volunteered at an animal shelter but it was hard to do because there were too many directions and things to remember. See January 2017 Primary Care Attending Note. The Veteran was afforded a VA examination for her psychiatric disability in October 2018. The examiner noted the following symptoms: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, and obsessional rituals which interfere with routine activities. The Veteran reported that she "always has thoughts" of suicide since 2012 and that "it's always in the back of [her] head;" however, she indicated that she was not currently suicidal and denied any current plans or intentions to harm herself. She also reported that she tried several jobs but "they didn't last more than two weeks." The Veteran reported that she received a Bachelor's degree in psychology in 2013 and began taking online courses for one semester toward a Master's degree in 2014. However, she stated that she could not concentrate because her brain did not work the way it used to, and she had trouble turning assignments in on time and remembering things. A VA medical opinion was obtained in August 2019 regarding the effect of the Veteran's service-connected disabilities on employment. After review of the claims file, the examiner noted that the Veteran had difficulty maintaining concentration and focus on work over a period of time and tended to skip from one task to another without completing the prior task. The examiner determined that the Veteran would require structured tasks and an occupational environment with limited people due to her service-connected disabilities. In a December 2019 opinion, the Director of Compensation Service determined that the evidence failed to show that any of the Veteran's service-connected disabilities, or a combination thereof, prevented employment, noting that in addition to the Veteran's service-connected disabilities, she had a nonservice-connected condition of Lyme disease. The Director found that entitlement to TDIU on an extraschedular basis had not been established. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). After considering the evidence of record, the Board disagrees with the conclusions of the March 2011, May 2016, June 2016, and August 2019 VA examiners that the Veteran's service-connected disabilities did not render her unemployable. (Continued on the next page) In reaching this decision, the Board has considered the fact that the Veteran has been diagnosed with Lyme disease, a nonservice-connected condition. While the Board notes that the Veteran's Lyme disease has caused some neurological and musculoskeletal issues, the Board finds that the Veteran is unemployable due to the combined effects of her service-connected disabilities. More specifically, the Board has considered the Veteran's panic attacks, memory and concentration problems, social isolation, difficulty communicating, difficulty with impulse control, obsessive-compulsive behaviors, and pain. Based on the foregoing, and in light of her educational and occupational history, the Board finds that the combined effects of the Veteran's service-connected physical and mental disabilities rendered her incapable of substantial gainful employment, to include sedentary employment. The clinical records reflect physical limitations caused by her service-connected disabilities. Although these physical disabilities do not appear to preclude more sedentary forms of employment, the effects of her service-connected psychiatric disability, when combined with her physical symptoms, at least as likely as not preclude her from performing the physical and mental acts necessary to obtain and maintain substantially gainful employment. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the combined effects of the Veteran's service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of TDIU. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.