Citation Nr: 23059253 Decision Date: 11/02/23 Archive Date: 11/02/23 DOCKET NO. 20-10 362 DATE: November 2, 2023 ORDER Prior to February 1, 2020, entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. Effective February 1, 2020, entitlement to TDIU is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Prior to February 1, 2020, the Veteran's service-connected disabilities did not render him unable to secure and follow substantially gainful employment. 2. Effective February 1, 2020, the Veteran's service-connected disabilities rendered him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to February 1, 2020, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. Effective February 1, 2020, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Relative to the claims herein, the Veteran was serving on active-duty assignment in the U.S. Navy Reserves from April 1981 to October 1982. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2017 decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In his February 2020 Form 9 appeal, the Veteran requested a hearing via videoconference. However, the Veteran failed to appear for his December 2022 Board hearing. Additionally, on August 21, 2018, the VA received the Veteran's Rapid Appeals Modernization Program (RAMP) Opt?in Election form requesting to have his legacy appeal issues processed in the new system created by the Appeals Modernization Act (AMA). Despite this fact, the AOJ continued processing the Veteran's claims under the legacy system, issuing a statement of the case (SOC) in February 2020, with the Veteran then filing his Form 9 appeal in the same month. However, VA's processing of RAMP opt?in requests concluded on October 18, 2022. See Unprocessed Election into the Rapid Appeals Modernization Program, 87 Fed. Reg. 43387 (July 20, 2022). Accordingly, the Board will proceed with adjudication of the issues in the legacy system. In the February 2020 SOC, the AOJ found the Veteran did not meet the criteria for service connection for PTSD, as the Veteran had never been diagnosed with PTSD. Further, the AOJ determined that the Veteran's symptoms were already covered by his 70 percent rating for unspecified anxiety attributed to the Veteran's service-connected traumatic brain injury (TBI) and any further compensation for those same symptoms would be pyramiding under 38 C.F.R. § 4.14. For the Veteran's TDIU claim, the AOJ found that the Veteran had failed to submit a complete VA Form 21-8940, describing what disabilities cause him to be unemployable. In November 2022, the Veteran submitted another TDIU claim, which the AOJ granted in February 2023, effective back to the November 21, 2022, date of that TDIU claim. It is also noted that the Veteran submitted new evidence in the form of additional treatment records following issuance of the February 2020 SOC. If new evidence is submitted from the Veteran or his representative with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See 38 C.F.R. §§ 19.31, 19.37. Here the Veteran submitted private medical records and, because the Veteran filed his substantive appeal after February 2013, waiver of AOJ initial review is presumed. 1. Prior to February 1, 2020, the Veteran's service-connected disabilities did not render him unable to secure and follow substantially gainful employment. 2. Effective February 1, 2020, the Veteran's service-connected disabilities rendered him unable to secure and follow substantially gainful employment. The Veteran contends that the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment for the entire appeal period. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the disability ratings assigned for his or her service-connected disabilities met certain thresholds. 38 C.F.R. § 4.16 (a). When the Veteran originally filed his claim for TDIU in January 2017, he was still employed fulltime with VA, while he indicated that his employment was at risk because of anger issues with PTSD. See Veteran's January 2017 Claim, page 2. While the Veteran was not service connected for PTSD at that time, or since, the Veteran's traumatic brain injury (TBI) and resulting unspecified anxiety disorder had been rated at 70 percent since December 2015. Consequently, despite the Veteran's statement about anger and PTSD relating to his January 2017 TDIU claim, the Veteran had met the schedular criteria for a TDIU since December 2015 based on TBI-related anxiety that caused anger issues with his employer. See 38 C.F.R. § 4.16 (a); 9/27/16 Rating Decision - Codesheet; and 5/9/2014 CAPRI at 1. Having met the schedular criteria for TDIU since December 2015, the Board turns to the second aspect of TDIU: whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component, which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce at the poverty threshold for one person. Second, there is a non-economic component dealing with the individual Veteran's ability to follow and secure employment. For the second component of entitlement to TDIU, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and 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 (2019). The Veteran earned $5,250 per month in his position with the Council Rock School District that ended as of October 2019. See the Veteran's November 2022 VA Form 21-8940. The Veteran has not argued, nor does the record reflect, that the Veteran's employment up to October 2019 was marginal or protected in any manner. After moving to Florida, the Veteran attempted to work. He held a job for either one month or three weeks (the Veteran's statements differ) in January 2020 with the Ocean Walk hotel on the beach in building maintenance, with the hotel firing him because of anger issues. See page 7 of December 2020 VA examination and February 2020 VA Treatment Record. The Veteran did not list his last building maintenance position working for the hotel on his November 2022 VA Form 21-8940 application for TDIU. Additionally, the Veteran has not provided any supporting evidence to show that this employment in January 2020 was not substantially gainful. The Veteran's December 2020 VA examination lists this employment and then states that the Veteran then attempted to work parttime repairing golf carts, which indicates that his building maintenance position was fulltime and nothing else in the record indicates that the Veteran was making less than the U.S. Department of Commerce poverty threshold. 38 C.F.R. § 4.16 (a), Ray v. Wilkie, 31 Vet. App. 58 (2019). However, employment may still be considered to not be substantially gainful despite earned income excessing the poverty threshold when such employment is in a protected environment, such as a family business or sheltered workshop. Id. Here, there is no evidence that the Veteran's employment at Ocean Walk hotel in January 2020 was in a protective environment. In fact, he was fired after only one month or three weeks. Additionally, there is no evidence in the record as to the last date the Veteran worked for the Florida hotel in January 2020 and, accordingly, the first ascertainable date when the Veteran did not meet the economic component of a TDIU was February 1, 2020. Hence, a TDIU must be denied prior to that date as he was gainfully employed. See 38 C.F.R. § 3.400. Turning to the non-economic aspects of a TDIU, pertinent to the Veteran's educational history, he has a high school diploma. See e.g., October 2018 Comprehensive Neuropsychological Evaluation. He lacks any certification or licensure in any skill or trade. See November 2022 Private Medical Opinion on TDIU. Turning to his work history since the military, he worked doing maintenance work for three years, in a factory packaging goods for two years, and repairing air conditioners for the VA at the Philadelphia VA Hospital for 28 years. See October 2018 treatment record and November 2022 Private Medical Opinion on TDIU. While the Veteran retired from his position with VA in 2017, he continued to maintain active employment, working full-time as a building Maintenance Engineer for the Council Rock School District in Newtown, PA from January 2018 to October 2019. See November 2022 Private Medical Opinion on TDIU. The Veteran then, as stated above, moved to Florida and attempted to work, but only held a job for up to one month in January 2020. After that, the Veteran tried working parttime repairing golf carts, but pain in his hands prevented it. Id. See page 7 of December 2020 VA examination. The Veteran is not service connected for any issues with his hands. The Veteran went through several VA examinations, and a private examination, for his TDIU claim. However, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). With that said, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his or her ability to obtain and maintain employment. The Veteran's private Physician Assistant wrote in a November 2022 opinion that the Veteran's inability to maintain employment was due to the combined effects of the Veteran's service-connected disabilities of unspecified anxiety disorder, traumatic brain injury, obstructive sleep apnea, tinnitus, and migraines. Thereafter, the Veteran underwent four different VA examinations from December 2022 through January 2023, which included for Obstructive Sleep Apnea (OSA), tinnitus, TBI and mental disorders, and for an eye condition (intermittent diplopia). The VA examiner for the Veteran's January 2023 mental disorders examination noted that the Veteran's condition had worsened since his last VA examination in 2020 and changed the Veteran's diagnosis from unspecified anxiety disorder and residuals to major depressive disorder, with anxious distress, and recurrent, moderate with mild neurocognitive disorder due to TBI. Based on the increase in severity of the Veteran's symptoms, the examiner found that the Veteran would likely have difficulty adjusting to any workplace. In the December 2022 OSA examination, the examiner found that the Veteran's service connected OSA (effective January 10, 2020) would independently severely impact his ability to work in both sedentary and more active work environments. The examiner also noted that it would be extremely difficult for the Veteran to secure or maintain occupational engagement across all occupational environments and settings due to the severity of his OSA. Other VA examiners in January 2023 found that the Veteran's tinnitus and eye condition would not affect his ability to maintain employment. Unless specifically provided otherwise, the effective date of an evaluation and award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date for an award of TDIU can be no earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of TDIU is based. Delrio v. Wilkie, 32 Vet. App. 232, 428 (2019). The Veteran was service connected for OSA effective January 10, 2020. The VA examiner found that significant daytime fatigue from OSA would severely impair his ability to work. At the same time, the Veteran suffered from anxiety and TBI residuals, including depressive-related symptoms, irritability, anger, excessive worry, concentration problems, and memory deficits. See March 2018 and December 2020 VA examinations. The evidence of record demonstrates that in January 2020, the Veteran's service-connected mental disorders and OSA clearly limited his mental ability to perform the type of activities required by his skillset of building maintenance and building air conditioner repair to the point of not allowing him to maintain fulltime employment. In fact, the Veteran was fired in January 2020 after only three weeks or one month of work. The evidence demonstrates that in January 2020 such factors as the Veteran's memory, concentration, and inability to adapt to change, handle workplace stress, and get along with coworkers prevented his ability to maintain employment. However, as indicated above, the Veteran maintained full-time employment through January 2020 despite these issues and his longstanding (December 2015) 70 percent rating for unspecified anxiety related to his TBI. Accordingly, the competent and credible evidence is neither evenly nor approximately balanced as to whether entitlement to TDIU is warranted before February 1, 2020. Rather, the evidence persuasively weighs against entitlement to TDIU before such date. Accordingly, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b). For this reason, upon review of the record, the Veteran's service-connected disabilities of unspecified anxiety disorder and residuals, later changed to major depressive disorder, with anxious distress, and recurrent, moderate with mild neurocognitive disorder due to TBI, and OSA precluded the Veteran from securing and following substantially gainful employment as of February 1, 2020, and TDIU is warranted as of that date, before which it is denied. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The issue regarding the Veteran's claim of service connection for PTSD is whether VA complied with its duty to assist the Veteran in affording him an examination and medical opinion regarding his claimed PTSD. The Secretary is required to provide a medical examination or opinion "if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim" and (1) the record contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of disease; (2) the evidence establishes that the veteran suffered an in-service event, injury or disease; (3) and the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury or disease or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). Whether an examination is necessary requires the Board to take into consideration "all information and lay or medical evidence." 38 U.S.C. § 5103A(d)(2). In the February 2020 SOC that denied the Veteran's claim for PTSD, the AOJ stated that the Veteran had never been diagnosed with PTSD and, regardless, the Veteran's symptoms of record were the same for his TBI-related anxiety. Additionally, the AOJ made favorable findings in the SOC as to the Veteran's PTSD stressor. The record contains multiple stressors asserted by the Veteran: TBI-related injury of being hit on the flight deck, falling again and hitting his head in medical for treatment of his TBI, friend falling overboard of the ship, and the Veteran nearly missing the departure of his ship at sea. Based on VA memorandum of October 2019, VA recognized these stressors, except for the Veteran's claim of nearly missing his ship, which the memorandum did not address. However, the Veteran did describe specific, separate symptoms of always feeling anxious of being late related to his claim of nearly missing his ship. See November 2018 VA treatment note. In January 2018, the Veteran filed a new claim for PTSD, listing it secondary to his TBI and seeking to reopen his 2017 PTSD claim. At no point did the AOJ ever schedule the Veteran for a VA examination to determine if the Veteran had a diagnosis of PTSD. However, the record clearly contained evidence of the Veteran's anger and anxiety. See November 2018 VA treatment note. The Veteran also listed reasons for his PTSD other than the TBI-related event, including his friend falling off the ship and the Veteran nearly missing his ship. VA did confirm certain of the Veteran's in-service PTSD stressors. Additionally, it is important to note that the Board is not competent to and cannot make its own medical opinions concerning whether the Veteran's symptomology is related to his in-service PTSD stressors or fully encompassed by his service-connected TBI-related anxiety rating. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the Board finds that a remand is necessary as further action on the Veteran's PTSD claim is warranted, as VA had a duty to assist the Veteran in obtaining a necessary medical examination and medical opinion to decide on a claim. See 38 C.F.R. § 3.159 (c)(4). Despite the above, the Board notes that the Veteran has already been granted entitlement to service connection for unspecified anxiety disorder at 70 percent since December 2015, which was later changed to major depressive disorder, with anxious distress, recurrent, moderate with a mild neurocognitive disorder due to TBI in 2023. Since any symptoms attributed to the Veteran's claimed PTSD would likely be combined with the Veteran's rating for his pre-existing service-connected mental disorders under the General Rating Formula for Mental Disorders (and not assigned separate ratings), the Veteran is encouraged to discuss with his representative whether it is appropriate to withdraw his claim seeking entitlement to service connection for PTSD and not expend further time and resources when no likely benefit will result to the Veteran. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's in-service stressor of nearly missing his ship on one or more occasions. If more details are needed, contact the Veteran to request the information. 2. After the Veteran's additional reported stressor has been developed, schedule the Veteran for a psychiatric examination to determine if the Veteran has a diagnosis of PTSD per DSM-V at any point since filing his January 2017 PTSD claim. After that, have the examiner determine the nature and etiology of the Veteran's PTSD, if diagnosed. The examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) related to a verified in-service stressor. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this REMAND, must be made available for review of the Veteran's pertinent medical history. 3. If a diagnosis for PTSD is made, the examiner must then attempt to differentiate which specific psychiatric symptoms are related to the Veteran's major depressive disorder, with anxious distress, recurrent, moderate with a mild neurocognitive disorder due to TBI, and which are accounted for by the separate and distinct psychiatric disorder of PTSD. If the examiner is unable to separate the particularized symptoms, the examiner MUST assume that all psychiatric symptoms present are related to the Veteran's service-connected major depressive disorder, with anxious distress, recurrent, moderate with a mild neurocognitive disorder due to TBI. 4. Regarding any separate symptoms regarding a diagnosis of PTSD, the examiner must then, with respect to the specific psychiatric symptomatology associated with the PTSD, describe and opine on its effect on his social and occupational functioning. In addressing the above opinions, the examiner should consider any of the Veteran's lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims of entitlement to service connection for PTSD. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.M. Winchell 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.