Citation Nr: 1526811	
Decision Date: 06/24/15    Archive Date: 06/30/15

DOCKET NO.  14-20 329	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Robert Lemley


ATTORNEY FOR THE BOARD

Bridgid D. Houbeck, Counsel


INTRODUCTION

The Veteran served on active duty from November 2004 to March 2009.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran has been unable to secure or follow substantially gainful employment as a result of his service-connected posttraumatic stress disorder (PTSD) throughout the claim period.


CONCLUSION OF LAW

The criteria for entitlement to TDIU have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Total disability ratings for compensation may 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 disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. § 4.16(a).

The Veteran is currently service connected for posttraumatic stress disorder (PTSD), tinnitus, left ear hearing loss, obstructive sleep apnea, and irritable bowel syndrome.  At the time of the Veteran's current claim, these disabilities resulted in a combined rating of 70 percent.  Likewise, his ratings for both obstructive sleep apnea and PTSD have been 50 percent during the appeals period.  Thus, the Veteran has met the threshold percentage requirements for TDIU as set forth under 38 C.F.R. § 4.16(a).  

The issue then becomes whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16.  In its December 2012 decision, the Social Security Administration did not find the Veteran to be unemployable.  While this evidence cannot be ignored, it is not binding on the Board.  See e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).  In this case, the weight of the evidence is in favor of a finding of unemployability.  The record shows sporadic employment during the appeals period.  The Veteran's irritable bowel syndrome and sleep apnea had some effect on his ability to work, but did not prevent it.  See October 2011 general medical examination.  His hearing loss and tinnitus did not impact his ability to work.  See id.  With regard to his service connected posttraumatic stress disorder, however, the record contains medical evidence that this condition rendered him unable to secure and maintain gainful employment.  Specifically, the October 2011 opinion noted that in the past he had significant issues related to PTSD, including difficulty getting along with people at work, problems focusing his attention at work and difficulty motivating himself to get up in the morning and go to work, that rendered him unable to secure and maintain substantially gainful employment.  Similarly, in an October 2012 psychiatric/psychological impairment questionnaire, a private psychiatrist found that the Veteran was incapable of tolerating even low stress work, noting that his PTSD symptoms caused an inability to get along with others which resulted in him being fired from five jobs in one year.  In a June 2014 letter, the Veteran's VA physician opined that he was not able to maintain or sustain substantially gainful employment due to his PTSD.  As such, the Board finds that a TDIU is warranted.



ORDER

A total disability rating based on individual unemployability due to service-connected PTSD is granted.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs