Citation Nr: 1541221 Decision Date: 09/24/15 Archive Date: 10/02/15 DOCKET NO. 08-11 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and His Spouse ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2000 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006 and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a videoconference hearing before the undersigned Veterans Law Judge in December 2011. The Board denied the Veteran's claim in a November 2014 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded the claim back to the Board for further action consistent with the terms of the JMR. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDING OF FACT Resolving all doubt in his favor, since May 2008, the Veteran's service connected disabilities have precluded him from securing or following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for a TDIU from May 2008 are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Because the claim is being granted, any error related to the VCAA with respect to this issue is harmless. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009). The Veteran contends that he is entitled to a TDIU because his service-connected PTSD and left shoulder disability render him unemployable. A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2015). In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. If there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Considering the pertinent evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted from May 2008. The Veteran is service connected for PTSD with alcohol abuse, rated as 70 percent disabling; status post left shoulder dislocation, rated as 20 percent disabling; and gastroesophageal reflux disease (GERD) rated as 10 percent disabling. The combined rating for the service-connected disabilities is 80 percent. The Veteran meets the minimum percentage requirements for consideration for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The Veteran last worked full time in May 2008 as a bulk mail specialist and driver. JMR at 2. The VA examiner who performed the Veteran's May 2007 VA medical examination opined that the Veteran was employable from a psychiatric viewpoint, but that he was only employable in a setting with little or no contact with the public. The VA examiner who performed the Veteran's September 2009 VA medical examination opined that the Veteran could work, although his work environment should have minimal public interaction. With regard to his left shoulder disability, the Veteran reported that his left shoulder dislocated every month but that he was able to put it back in place. The examiner noted that because the Veteran was right hand dominant, he would be able to fulfill a job requirement involving the use of the right hand. The examiner noted that the Veteran's left hand could be used to lift twenty-five pounds. Given all of the limitations on the Veteran's employment expressed by the VA medical examiners and resolving all doubt in favor of the Veteran, a TDIU from the date he was last employed full time, May 2008, is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER A TDIU is granted from May 2008. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs