Citation Nr: 1757580 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-17 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from March 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2017, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. FINDING OF FACT 1. The Veteran is in receipt of service connection for coronary artery disease (rated as 60-percent disabling); posttraumatic stress disorder (PTSD) with alcohol dependence (30-percent disabling); peripheral vascular disease, right leg (20-percent disabling); right upper extremity alcohol toxicity polyneuropathy (10-percent disabling); left upper extremity alcohol toxicity polyneuropathy (10-percent disabling); right lower extremity alcohol toxicity polyneuropathy (10-percent disabling); left lower extremity alcohol toxicity polyneuropathy (10-percent disabling); tinnitus (10-percent disabling); peripheral vascular disease, left leg (noncompensable); and hearing loss (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-in particular PTSD, coronary artery disease, and peripheral vascular disease of the lower extremities-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 coronary artery disease (rated as 60-percent disabling); PTSD with alcohol dependence (30-percent disabling); peripheral vascular disease, right leg (20-percent disabling); right upper extremity alcohol toxicity polyneuropathy (10-percent disabling); left upper extremity alcohol toxicity polyneuropathy (10-percent disabling); right lower extremity alcohol toxicity polyneuropathy (10-percent disabling); left lower extremity alcohol toxicity polyneuropathy (10-percent disabling); tinnitus (10-percent disabling); peripheral vascular disease, left leg (noncompensable); and hearing loss (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). The medical evidence of record includes a December 2016 letter from a private psychologist, who opined that the Veteran has "great difficulties in regulating his emotions," is "subject to outbursts of anger and rage," and has "difficulty focusing and concentrating." The examiner noted that the Veteran exhibited suicidal ideation as well as short- and long-term memory loss and was "permanently disabled" as a result of his psychiatric symptoms. With respect to the Veteran's service-connected heart conditions, VA examination reports dated in June 2015 and June 2017 show that his symptoms render him unable to perform physical labor. The lay evidence of record demonstrates that the Veteran last held a full-time job in 2007. During his Board hearing, he testified that he was forced to stop working due to his PTSD, coronary heart disease, peripheral vascular disease, and polyneuropathy. With respect to PTSD, he testified that he had anger and authority issues as well as panic attacks which sometimes resulted in physical violence. He also testified that leg pain caused by peripheral vascular disease prevented him from walking more than 50 feet. The Board finds his testimony to be credible and probative. Notably, correspondence dated in September 2012 from an employee of the Michigan Workforce Development Agency employee found that, "[g]iven the breadth of the [Veteran's] issues, both physical and psychological," it would be "impossible to link him with employment and/or training." In sum, given the severity of the Veteran's service-connected disabilities, particularly his PTSD, coronary artery disease, and peripheral vascular disease, the Board concludes that the competent and probative evidence demonstrates that his service-connected disabilities combine to produce significant symptomatology which can be said to preclude substantial and gainful occupation. 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