Citation Nr: 1751514 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 07-31 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis. WITNESS AT HEARING ON APPEAL The Veteran ORDER Entitlement to TDIU is granted as of the date of claim. FINDING OF FACT The preponderance of the evidence demonstrates that the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1966 to April 2007, including service in the Republic of Vietnam for which he earned the Combat Action Medal and the Purple Heart. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in April 2007 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran is rated as at least 60 percent disabled as a result of his service in Vietnam. Specifically, his posttraumatic stress disorder (PTSD) has been rated as 50 percent disabling and his right shoulder calcific tendinitis as a result of a gunshot wound has been rated as 10 percent disabling. In addition, the Veteran has a disability rating for prostate cancer which was rated as 100 percent disabling from June 2008 to January 2012 and rated as 20 percent disabling since January 2012. Where the Veteran's disabilities are the result of a common etiology, those disabilities may be considered as a single disability for purposes of calculating a single 60 percent disability rating. 38 C.F.R. § 4.16(a). The Veteran's PTSD and gunshot wound residuals in his right shoulder are both the result of his combat service in Vietnam. Prostate cancer is a disability which is presumed to be the result of exposure to herbicidal agents during the Veteran's service in Vietnam. Therefore the Board finds that all of these disabilities have a common etiology and a single 60 percent disability rating has been demonstrated throughout the appeals period for purposes of the TDIU claim. As a result, the criteria for consideration of a schedular TDIU rating under 38 C.F.R. § 4.16(a) have been met. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The record shows that the Veteran has a 10th grade high school education and a graduate equivalency degree (GED). His work experience includes work in retail, selling rent-to-own televisions and collecting payments on them, and work in the construction industry, including doing odd jobs as a handyman. The Veteran's education and work history must be considered in analysis of his ability to work. A June 1998 VA examination of the Veteran's shoulder disability noted that he had pain in lifting his arm and limitation of motion. He also had chronic muscle spasm and rotator cuff trauma as well as hypertonic muscles as a result. A VA examination conducted in April 2001 noted that the Veteran had not worked since the late 1990s. He reported that he had difficulty with authority figures and did not like to be around other people. The VA examiner noted that the Veteran's mental health problems would limit the types of jobs he could handle in large part because of his problems in getting along with people, but would not totally prevent him from working. In a January 2001 statement, the Veteran asserted that he was unable to keep a job because he took alprazolam for his PTSD which made him sleep. This, in addition to his need to attend multiple regular medical appointments and the limitation of motion in his left hand and right shoulder, severely limited his ability to work. At the March 2007 VA examination, the Veteran reported such symptoms as flashbacks and nightmares, poor self-esteem and depression, and a tendency to isolate himself from others. He had difficulty with authority figures, showed poor judgment, and problem behaviors. Another VA examination, also in July 2010, noted the Veteran's mental health symptoms of depression, anhedonia, guilt, passing mild suicidal ideation, a history of combativeness and homicidal ideation, isolativeness, difficulty with authority, hypervigilance, and paranoia. At the time of the examination, the Veteran was disheveled, with long hair and a beard, and showed poor hygiene, including body odor. The examiner noted that the Veteran had previously been felt to have antisocial personality traits and borderline personality traits. The examiner felt that these traits contributed significantly to the Veteran's social and occupational problems, particularly his problems getting along with people, and that the PTSD alone did not prevent him from working. After considering all of the evidence of record, the Board finds that the Veteran's service-connected disabilities render him unable to sustain reasonably gainful employment. Of particular significance is the Veteran's limited education and his employment history of primarily physical labor which requires him to interact with people and defer to authority and take direction. The Veteran's mental health records show that he has difficulty dealing with other people, including a history of anger problems and confrontation with others, and has had difficulty with authority figures. His depression and his tendency to retreat from contact with other people significantly impact the Veteran's ability to function in a workplace. In addition, his anger issues and demonstrated limitations on personal hygiene would also interfere with his employability. When the benefit of any remaining doubt is applied in the Veteran's favor, the Board must find that the evidence supports a grant of TDIU. The claim is granted. ______________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel Copy mailed to: Texas Veterans Commission Department of Veterans Affairs