Citation Nr: 1753598 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-22 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1981 to August 1985, and from December 2003 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2017, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran is in receipt of service connection for posttraumatic stress disorder (PTSD) (rated as 70-percent disabling); nephritis with nephrolithiasis (40-percent disabling); tinnitus (10-percent disabling); tendonitis of the right ankle (10-percent disabling); tendonitis of the left ankle (10-percent disabling); and hemorrhoids (noncompensable). His combined disability rating is 90 percent. 2. The Veteran's service-connected disabilities, considered collectively, render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 7105(d) (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his service-connected disabilities render him unemployable. For the following reasons, the Board agrees and finds that entitlement to a TDIU is warranted. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion regarding unemployability, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100-percent disabling; or (2) that the veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60-percent disability, or one 40-percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In sum, to warrant a TDIU, the evidence must show that the claimant is incapable of "performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran is currently in receipt of service connection for PTSD (rated as 70-percent disabling); nephritis with nephrolithiasis (40-percent disabling); tinnitus (10-percent disabling); tendonitis of the right ankle (10-percent disabling); tendonitis of the left ankle (10-percent disabling); and hemorrhoids (noncompensable). His combined rating for these disabilities is 90 percent. Consequently, he is eligible for a TDIU on a schedular basis. The remaining question is whether he is unemployable as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a). After reviewing the record, the Board finds that the Veteran's service-connected disabilities, considered together, have rendered him unable to secure and follow a substantially gainful occupation throughout the appeal period. The record shows that the Veteran was employed as a janitor for upwards of 20 years-a position which required physical labor. He credibly testified that he was forced to retire in 2010 because his workplace did not allow him to take necessary medication for his kidney disease. Additionally, he has alleged that his PTSD impaired his ability to work by causing short-term memory loss, confusion, and irritability, and that his bilateral ankle conditions prevent him from standing for long periods. See VA Form 9 (May 2014). The Veteran has also reported having numerous kidney episodes that required him to miss substantial time from work. Id. The medical evidence of record is consistent with these reports. The Board further notes that the Veteran has been determined to be disabled by the Social Security Administration, in part due to his PTSD and kidney disease. He was also denied vocational rehabilitation assistance on grounds that it was not feasible for the Veteran to achieve an employment goal. See Counseling Record - Narrative Report (July 2011). In sum, given the severity of the Veteran's service-connected disabilities, particularly his PTSD and nephritis, the Board concludes that the competent and probative evidence demonstrates that the Veteran's service-connected disabilities combine to produce significant symptomatology which can be said to preclude substantial and gainful occupation for the entire appeal period. Based on the above analysis, the Board concludes that a grant of TDIU is warranted under 38 C.F.R. § 4.16(a). ORDER Entitlement to a TDIU is granted. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs