Citation Nr: 1753515 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 11-01 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The February 2009 rating decision, in pertinent part, granted service connection for post-traumatic stress disorder (PTSD) and assigned an evaluation of 50 percent, effective July 24, 2008. Also, in an April 2016 rating decision, entitlement to a TDIU was denied. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board remanded the case for further development in August 2014 and February 2017. That development has been completed and the case has since been returned to the Board for appellate review. FINDINGS OF FACT The Veteran's service-connected PTSD at least as likely as not renders him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION All veterans who are shown to be unable to secure and follow substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure or follow substantially gainful employment. See 38 C.F.R. § 4.16. An award of TDIU does not require a showing of 100% unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). However, an award of a TDIU requires that the claimant show an inability to undertake substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b) ("[A]ll veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled."). In determining whether a claimant is unable to secure or follow substantially gainful employment, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual's education, special training, and previous work experience, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate 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 id. The Veteran is service connected for PTSD, evaluated as 70 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensable. His combined disability rating is 80 percent. Thus, the Veteran meets the schedular requirements for TDIU due to service-connected disabilities under 38 C.F.R. § 4.16(a). The Veteran contends that he is prevented from performing substantially gainful employment due to his service-connected PTSD. See January 2011 VA 21-8940. The Veteran's highest educational level is a high school diploma. The record reflects that, following his separation from service, the Veteran worked as a mechanic until 1999. Following this, the Veteran worked as a clerk at a hardware store until June 2010. The Veteran reported that he was terminated from his employment at the hardware store on four separate occasions due to scheduling frustrations and aggravation. See January 2009 VA Examination. The Veteran also reported that he had worked at a tobacco store on Sundays, but that became irritated with his boss and left. See id. A March 2010 letter from his prior employer indicates that the Veteran had issues dealing with people, and that he was often agitated and confused. It states that the Veteran had issues dealing with the noise and confusion of the store, which appeared to cause stress for the Veteran. Further, it indicated that the Veteran often appeared incoherent and he had left the job early on many occasions. Ultimately, the letter indicated that the Veteran was terminated on account of his aforementioned behaviors. A January 2011 private treatment record reflects that the Veteran's PTSD related symptoms increased after he lost his job. See January 2011 Private Medical Records. To that end, the physician noted that the loss of structure in the Veteran's life made it more difficult for him to organize his time and to distract his thoughts away from his obsessive rumination on his years in service. The physician opined that, due to his service-connected PTSD, the Veteran was unable to secure and maintain employment. VA examinations and treatment notes from December 2013 through May 2017 indicate that the Veteran consistently experienced problems with sleep, anxiety, hypervigilance, agitation, irritability, exaggerated startle response, and adapting to work settings. See generally December 2013 VA Examination; March 2016 VA Examination; May 2017 VA Examination. Based on the Board's review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran can secure or follow substantial gainful employment. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f ... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). Accordingly, entitlement to a TDIU is granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a TDIU is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs