Citation Nr: 1331086 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-17 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Chisholm, Chisholm, and Kilpatrick, LTD, Attorneys at Law WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. He had subsequent service in the Unites States Army Reserves. He also had active military service in the Republic of Vietnam and was awarded the Combat Infantryman's Badge. This case comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which originally had jurisdiction over this appeal, and Roanoke, Virginia, to which jurisdiction over this case was transferred and which forwarded the appeal to the Board. In that decision, the RO continued a 30 percent evaluation for PTSD. In March 2009, the Veteran and his spouse provided testimony before a Decision Review Officer at the Roanoke, Virginia. A copy of the transcript of that hearing is of record. By an April 2009 rating action, the RO assigned a 50 percent evaluation for PTSD, effective March 10, 2008 - the date the RO received the Veteran's claim for increased compensation. Because the increase in the evaluation of the Veteran's PTSD does not represent the maximum rating available for the condition, the Veteran's increased evaluation claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the increased rating issue is framed as on the title page of this decision. In August 2012, the Board denied the Veteran's claim for entitlement to a rating in excess of 50 percent for PTSD. An additional claim for entitlement to service connection for hypertension as secondary to Agent Orange exposure was remanded for additional development. The increased rating claim was appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a February 2013 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion For Partial Remand. The Board's decision was vacated and the Veteran's increased rating claim was remanded to the Board. The Order called for the claim to be remanded because adequate reasons and bases were not given as to why a rating in excess of 50 percent was not warranted for service-connected PTSD. Subsequently, in September 2013, additional records were submitted with a waiver of initial agency of original jurisdiction (AOJ) consideration for the evidence submitted. 38 C.F.R. § 20.1304(c) (2012). The submitted evidence includes argument by the attorney representative that the Veteran is unemployable due to his service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (when evidence of employability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability). In light of the foregoing, the Board has jurisdiction over the Veteran's claim for a TDIU and has included it on the first page of this decision. See Percy v. Shinseki, 23 Vet. App. 37 (2009); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Archbold v. Brown, 9 Vet. App. 124 (1996). The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's PTSD is manifested by, at most, occupational and social impairment with reduced reliability and productivity due to multiple symptoms. 2. The Veteran is service-connected for prostate cancer, status post total prostatectomy, rated as 60 percent disabling; PTSD, rated as 50 percent disabling; ischemic heart disease, rated as 30 percent disabling; and erectile dysfunction, rated as noncompensable. (The virtual records reflect that rating decision in August 2013 resulted in a proposed decrease for prostate cancer residuals from 100 percent rating to 60 percent and end of special monthly compensation for loss of creative organ.) 3. The Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). 2. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, as to the claim for an increased rating for PTSD, a March 2008 letter to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to an increased rating and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of this letter by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claim. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran, his spouse, and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the March 2008 letter mentioned above. As to the claim for a TDIU, considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. The Board further observes that the Veteran was afforded VA psychiatric examinations in April 2008, December 2008, and May 2010 regarding the severity of his psychiatric condition. Neither the Veteran nor his representative has argued that such examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected PTSD as they include an interview with the Veteran, a review of the record, and a full mental status examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2012). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2012). The Veteran is service-connected for PTSD which is currently evaluated as 50 percent disabling, effective March 10, 2008. He contends that such disability is more severe than the currently assigned rating and renders him unemployable. Therefore, the Veteran claims that he is entitled to a higher rating for his PTSD. In an August 2013 statement, he reported that he found it difficult to be in crowded areas. He did not like for anyone to walk behind him, and he did not particularly like being around others. If he visited the store, he did so early in the morning when there were less people and he could get out quicker. He described himself as a loner and did not engage others in conversation, although he did eat with his family. While he attended church he did not mingle with others or engage in conversation. His house chores included keeping his bathroom clean. He did watch war-related television shows, and said that he was easily startled. He suffered from memory loss, fatigue, and depression. The Veteran's PTSD is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, DC 9411, which pertains to PTSD. Under such regulations, ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Under the General Rating Formula, a 50 percent disability rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. "Richard v. Brown, 9 Vet. App. 266, 267 (citing DSM-IV). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). In any increased rating claim, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Following a review of the relevant evidence of record, which includes VA treatment records and private records, lay statements by the Veteran's family members, and April 2008, December 2008, and May 2010 VA examination reports, the Board concludes that the Veteran is not entitled to a rating in excess of 50 percent for his PTSD. In this regard, the Board finds that, for the entire appeal period, such disability is manifested by occupational and social impairment with reduced reliability and productivity as a result of sleep impairment, mild short term memory loss, mildly restricted affect (in April 2008), depression, and anxiety in public situations but without classic panic attacks. Such symptoms, to include his anxiety in public situations, but without classic panic attacks, are contemplated in his current 50 percent rating. Mauerhan, supra; 38 C.F.R. § 4.130, DC 9411 (2012). As indicated previously, a 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Based on the evidence of record, the Board finds that the Veteran's PTSD disorder does not result in occupational and social impairment with deficiencies in most areas. With respect to the symptoms indicative of a 70 percent rating, the Board notes that, at his April 2008 and May 2010 VA examinations, the Veteran manifestations of PTSD did not include report of symptoms that would warrant a rating of 70 percent. For example, there was no report of suicidal ideation, obsessional rituals, illogical, obscure, or irrelevant speech, or near-continuous panic or depression. As indicated by VA reports in August 2007, April 2008, December 2008, May 2010 and January 2011, the Veteran's PTSD was primarily manifested by sleep impairment, mild short term memory loss, mildly restricted affect (in April 2008), depression, and anxiety in public situations but without classic panic attacks. Additionally, there is no evidence that the Veteran suffers from impaired impulse control during the current appeal period. Moreover, the Board further finds that the evidence fails to demonstrate that the Veteran neglects his personal appearance and hygiene. In this regard, VA treatment records and examination reports dated during the appeal period consistently show that he has been casually and appropriately dressed, and neatly, adequately, and appropriately groomed. Also, while as determined below, while the Veteran is currently unemployable due to his various service-connected disorders, it is not shown that his PTSD alone makes him unemployable. See the recently submitted August 2013 private vocational consultant's report which, in effect, reflects that the Veteran is unemployable due to the combined effects of his psychiatric disorder, prostate cancer residuals, and heart disorder. Regarding the Veteran's ability to establish and maintain effective relationships, the VA exam reports of record reflect that the Veteran is somewhat isolated but gets along with his family and does enjoy some activities outside of the home. For example, he attends church several times per week. The Board finds that the Veteran is able to establish and maintain effective relationships. The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating criteria, to include intrusive recollections and dreams, hypervigilance, nightmares, avoidance, markedly diminished interest or participation in significant activities, and difficulty sleeping and difficulty concentrating. See Mauerhan, supra. However, the Board finds that such symptoms do not more nearly approximate a rating in excess of 50 percent under the General Rating Formula as they are not of such a severity or frequency to result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. The Board has also considered the Veteran's GAF scores assigned during the course of the appeal. In this regard, the April and December 2008 examination reports show scores of 57 and 56, respectively. The May 2010 report shows a score of 57. These scores indicate moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with peers or coworkers). A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). Based on the evidence of record, discussed previously, the Board finds that the Veteran's symptomatology is consistent with the assigned GAF scores of 56 to 57. In this regard, such scores represent moderate symptoms, which is in accord with the Veteran's current 50 percent rating. Moreover, the Board finds that the criteria for a 100 percent rating under the General Rating Formula are not met. In this regard, the evidence does not show that the Veteran has total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In this regard, there was no evidence of hallucinations, delusions, or significant cognitive impairment at any time in the record. Likewise, mental status examinations of record do not reveal psychomotor activity, or abnormal thought process and thought content. Delusions or hallucinations are not indicated. Furthermore, as indicated previously, the evidence reflects that, while the Veteran is unemployable, such is not due solely to his PTSD. Additionally, the evidence reflects that he attends church and particularly enjoys spending time with his twin granddaughters. He is involved in taking and picking them up from school. Furthermore, there is no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger to himself or others, an inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, occupation, or own name. While there is report of short term memory loss, the Veteran is not entitled to a 100 percent rating under the General Rating Formula. In summary, the Board finds the Veteran's PTSD symptoms most closely approximate the 50 percent rating criteria and a rating in excess of 50 percent is denied. Mauerhan, supra; 38 C.F.R. § 4.130, DC 9411 (2012). Finally, it is noted that the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Thus, the Board is unable to identify a reasonable basis for granting the Veteran's claim. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected PTSD with the established criteria found in the rating schedule. The Board finds that the Veteran's PTSD symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms of his PTSD that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice, supra, the Court held that when evidence of employability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability. However, as the Veteran's claim for a TDIU is already on appeal and will be addressed in the following section, no further discussion of such is necessary at this time. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 50 percent for PTSD and major depressive disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012). TDIU Claim Recently added to the record was a private vocational consultant's August 2013 evaluation of the record. It was his opinion that the Veteran's various service-connected conditions made him unemployable. The Board agrees. Therefore, a TDIU is warranted. Total disability ratings for compensation based on individual employability may be assigned where the schedular rating is less than total if 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, 3.34l, 4.16(a) (2012). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b) (2012). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce employability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Board notes that the fact that a Veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish employability. The relevant question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a) (2012). In this case, the Veteran is service-connected for residuals of prostate cancer, rated as 60 percent disabling; PTSD, rated as 50 percent disabling; ischemic heart disease, rated as 30 percent disabling, and erectile dysfunction, rated as noncompensable. Clearly, the Veteran's combined disability evaluation is more than 70 percent. Therefore, the Board finds that the Veteran meets the threshold percentage criteria for a TDIU under 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). As such, the remaining inquiry is whether his service-connected disabilities render him unemployable. In this regard, it is noted that there is report in 2008 that the Veteran worked for an electric company for approximately 30 years until he retired in 1999. The record shows that the Veteran has moderate psychiatric symptoms as reported in detail above. As a residual of his prostate cancer and total prostatectomy, (as told to the private vocational consultant in August 2013), he needs to be in close proximity to a bathroom. He wears a pad which he has to change up to 15 times per day due to uncontrollable urination. His medical history includes three heart surgeries, most recently in February 2013, and he is often fatigued. He finds it necessary to take naps. Based on the foregoing, the Board finds that the preponderance of the evidence demonstrates that the Veteran's service-connected disabilities, to include residuals of prostate cancer, PTSD, and heart disease, preclude him from securing and following substantially gainful employment. Therefore, while none of the Veteran's service-connected disabilities alone render him unemployable, the Board finds that such disabilities in combination preclude him from securing and following substantially gainful employment. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities of residuals of prostate cancer, PTSD, and ischemic heart disease render him unemployable. As such, entitlement to a TDIU is warranted. ORDER A rating in excess of 50 percent for PTSD is denied. A TDIU is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs