Citation Nr: 1800841 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 11-29 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1982 to September 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record on appeal. FINDINGS OF FACT Resolving all doubt in the Veteran's favor, his service-connected posttraumatic stress disorder (PTSD) renders him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he is unable to secure or maintain substantially gainful employment due to his service-connected PTSD. When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992); Floore v. Shinseki, 26 Vet. App. 376, 383 (2013). 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 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 (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 8th 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). The Veteran has been service-connected for his sole disability of PTSD, which is rated as 70 percent disabling since February 9, 2004. As such, he meets the schedular threshold criteria for consideration of a TDIU. 38 C.F.R. § 4.16 (a). Additionally, upon review of the evidence, the Board finds that the Veteran's service-connected PTSD has rendered him unable to secure or follow a substantially gainful occupation. Turning to his educational and work experience, the evidence of record indicates that the Veteran has a high school education with subsequent training as a mechanic. Regarding his work history, his testimony at the October 2017 hearing and the record suggest that he previously worked as a wrecker driver, a mechanic and a blender operator. He credibly testified that all of these positions required a level of interpersonal interaction which he could not maintain due to his PTSD-related short temper and anger. The Veteran underwent VA examinations in October 2004, September 2005, August 2009 and March 2016 in order to determine the nature and severity of his service-connected PTSD. The October 2004 VA examiner opined that the Veteran's PTSD symptoms had a moderate negative impact on his occupational functioning due to his poor tolerance for frustration, difficulties with authority figures, history of interpersonal conflicts, and mistrust of others. The September 2005 VA examiner found the Veteran to be employable but found that he would not stay long on a job due to conflict with supervisors and coworkers. He further found that the Veteran had poor impulse control, due to minimal insight to anger outbursts. The August 2009 VA examiner noted that the Veteran had a history of extreme irritability to a point of overt anger. He opined that the Veteran's symptoms did not interfere with his ability to obtain gainful employment. The March 2016 VA examiner noted that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner specifically noted that the Veteran's condition resulted in impaired impulse control such as unprovoked irritability with periods of violence. The examiner opined that the Veteran would have a difficult time performing in the work place due to his quick temper. Furthermore, the examiner stated that the Veteran would have extreme difficulty dealing with coworkers and supervisors. The examiner stated that any employment that required travel over bridges would be difficult for the Veteran and that he would have difficulty concentrating and following complex directions and completing tasks under time constraints. While the VA examiners indicated the Veteran could perform work, specifically solitary work, testimony from the October 2017 hearing establishes that the Veteran attempted solitary work, however even in that capacity he still had to interact with supervisors and was unable to maintain that employment. Furthermore, he does not have the skills or expertise to perform other types of solitary employment. In this regard, he has no additional training and has never held a position in an office setting. Additionally, while the Veteran has in the past indicated nonservice-connected disabilities also impacted his employability, he specifically stated that his PTSD alone prevented him from performing the only type of work he has ever done, i.e., physical labor. Notably, the question of employability is ultimately a legal one, not a medical one. The evidence, as described and discussed above, clearly shows that the Veteran is not able to maintain the type of employment he is experienced in due solely to his service-connected PTSD. In this regard, the Board finds the opinions of the VA examiners to be highly probative as the examiners considered the full evidence of record, including lay statements, and clearly articulated how the Veteran's PTSD would hinder physical employment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). However, the Board also finds the Veteran's hearing testimony to be highly probative, therefore in light of the totality of the evidence, the Board finds that a TDIU is warranted. Based on the analysis above and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected PTSD prevented him from securing or following substantially gainful employment. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, Gilbert, supra. Therefore, entitlement to a TDIU is warranted. ORDER A TDIU is granted. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs