Citation Nr: 1752632 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 16-51 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his family ATTORNEY FOR THE BOARD A.Spigelman, Associate Counsel INTRODUCTION The Veteran had active military service from January 1951 to October 1952. The Veteran's decorations for his period of active service include a Combat Infantry Badge (CIB). This case comes before the Board of Veteran's Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In connection with this appeal, the Veteran and his family testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). FINDING OF FACT 1. The Veteran's combined rating has been at least 80 percent since October 2012, with at least one disability rated at 40 percent or higher. 2. The Veteran is unable to obtain and maintain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has asserted that he is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. A review of the record shows that the Veteran has been in receipt of a combined rating of at least 80 percent since October 2012, with at least one disability rated 40 percent or higher. Therefore, the Veteran has met the schedular criteria for the assignment of a TDIU for the entire period on appeal. In his September 2013 claim of entitlement to a TDIU the Veteran reported that he last worked full-time in 1988, but that he became too disabled to work in July 2007. He reported that his service-connected posttraumatic stress disorder (PTSD) and dementia, and his service-connected pulmonary disability prevented him from working. The Veteran last worked in a cafeteria doing kitchen work. The Veteran has reported that while he has taken some educational courses, he has a 7th grade education level. In a September 2013 letter from the Veteran's private treatment provider, Dr. D.R., it was noted that the Veteran's service-connected pulmonary fibrosis was severity. Dr. D.R. noted that the Veteran experienced persistent dyspnea as a result and was totally disabled due to the pulmonary fibrosis. Dr. D.R. further noted that the Veteran was not able to complete any employment activity as a result of his persistent dyspnea. In an April 2014 letter from Dr. D.R., it was noted that the Veteran's respiratory disability caused him to experience shortness of breath at rest, which was increased with any type of activity. It was Dr. D.R.'s opinion that the shortness of breath completely incapacitated the Veteran and made it impossible for him to perform any job duties. In October 2014, the Veteran was afforded a VA PTSD examination. At that time, the VA examiner noted that the Veteran's PTSD symptoms would produce a moderate effect on the Veteran's ability to sustain work performance in a competitive work environment. In a February 2017 letter from another of the Veteran's private treatment providers, Dr. M.N.S., it was noted that the Veteran was receiving care for vascular and neurodegenerative dementia. Dr. M.N.S. noted that the Veteran experienced difficulty getting around and as a result, would be unable to work. In May 2017, the Veteran was afforded another VA examination. At that time, the examiner noted that the Veteran's PTSD symptoms included: anxiety; depressed mood; suspiciousness; mild memory loss, including of names of family members; difficulty understanding complex commands; impaired abstract thinking; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or work-like settings; loss of motivation and energy; avoidance of groups of people; hypervigilance; and avoidance of socialization. Further, the VA examiner found that the Veteran's dementia was related to his service-connected PTSD. In an August 2017 rating decision, the Veteran was found not competent to handle the disbursement of his VA compensation funds. In this regard, it was noted that the Veteran lacked the mental capacity to control or manage his affairs as a result of his mental health symptoms. In an August 2017 statement, Dr. M.N.S. stated that the Veteran's PTSD and dementia made it difficult for the Veteran to determine what reality was and caused him to experience a loss of insight. The Board finds that the Veteran's service-connected pulmonary disability and his service-connected PTSD and dementia present an impairment that precludes him from obtaining and maintaining substantially gainful employment consistent with his education and industrial experience. The Board acknowledges that the Veteran also has nonservice-connected disabilities that impact his ability to work. However, that fact does not preclude the Board from finding that the Veteran's service-connected disabilities alone would prevent him from obtaining and maintaining substantially gainful employment. Therefore, the Board finds that the preponderance of the evidence is for the claim and entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs