Citation Nr: 1801909 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-20 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty with the United States Army from March 1968 to February 1970, with additional service in the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2015, the Board remanded the appeal, as the issue of entitlement to a TDIU was raised as part and parcel to the increased rating claim for posttraumatic stress disorder (PTSD), which was increased to 70 percent disabling by the Board at that time. Because implementation of the grant of the 70 percent disability rating for PTSD in the October 2015 Board decision could have potentially impacted the issue of entitlement to a TDIU, the issue was remanded. The issue of TDIU is now before the Board again. The Board notes that in his substantive appeal, the Veteran requested a hearing. In March 2015, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claim currently on appeal. FINDING OF FACT Due to his service-connected disabilities, the Veteran is unable to obtain or retain substantially gainful employment. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties VA has completed the necessary steps in order to meet its duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The record reflects substantial compliance with the Board's October 2015 Remand. See Stegall, 11 Vet. App. 268, 271 (1998). The Veteran has not identified any additional records that should be obtained prior to a Board decision. The remand directives were adequately followed; thus, the Board finds substantial compliance has been shown. Accordingly, the duties to notify and assist under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) are satisfied. II. Entitlement to TDIU The Veteran contends that he is unable to work due to the symptomatology associated with his service-connected disabilities. After a thorough review of the evidence, the Board concludes that the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is presently service connected for PTSD with depressive disorder (70 percent disabling) and traumatic arthritis of the left ring finger (10 percent disabling). The Veteran's combined evaluation was 70 percent, effective as of June 30, 2009. As one disability is rated at 60 percent or more with a combined total of 70 percent, as of June 30, 2009, he is initially eligible for schedular TDIU consideration. Accordingly, the remaining issue is whether the Veteran's service-connected disabilities precluded the Veteran from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(b) (2017). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran has primarily alleged that he is unable to maintain substantially gainful employment as a result of his service-connected PTSD. On VA examination in July 2009, the examiner provided a diagnosis of PTSD and depressive disorder. The examiner noted that the Veteran's social adaptability and interactions with other appeared to be moderately to considerably impaired. The examiner further noted that the Veteran's ability to maintain employment and perform job duties in a reliable, flexible and efficient manner appeared to be moderately to considerably impaired as well. The examiner opined that the Veteran's level of disability was in the moderate to considerable range. The Veteran was afforded another VA examination in November 2012 for his PTSD. The examiner noted that the Veteran was diagnosed with PTSD as well as dementia NOS, a non-service connected disability. The Veteran reported he had memory problems since the 1990s with a decline in functioning; however, he could not identify their cause. The examiner noted that the Veteran demonstrated occupational and social impairment with reduced reliability and productivity. The examiner further specified that the Veteran presented with severe impairment in occupational and social functioning due to his dementia NOS, and moderate impairment in occupational and social functioning due to PTSD. In connection with his diagnosed conditions, the Veteran demonstrated depressed mood, anxiety, chronic sleep impairment, impairment of short-term and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Thus, based on the examiner's findings, both the Veteran's dementia NOS and PTSD affect his ability to work. The Board notes that the Veteran's last employment was as a lab technician at a plant that manufactured drive belts. He last worked in January 1994, and prior to that, work was sporadic for some period of time. Employment in his lab technician capacity was not sedentary in nature, as it required inspection of the manufacturing of belts and the maintenance of the physical lab. With regard to his education level, the Veteran is a high school graduate. The Board further notes that TDIU analysis must take into account the individual veteran's education, training, and work history, and is a question for adjudicators and not medical personnel. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Board finds that the realistic chances of the Veteran obtaining and retaining employment must also be considered in light of his physical and educational capabilities. Although it is conceivable that there may be some occupations that the Veteran could perform, and he certainly had some marginal employment over the years, the totality of the evidence supports a finding that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment when his educational and work background are taken into consideration. The Board finds that the evidence is at least in equipoise in regards to whether the Veteran's PTSD rendered him unemployable. Neither the July 2009 nor the November 2012 VA examiner concluded that the Veteran's PTSD resulted in total occupational impairment. The November 2012 focused on his non-service-connected dementia NOS being the primary cause of his occupational impairment. The Board notes that it is clear from the record that the Veteran's memory loss and dementia NOS are primary reasons for why he left his previous job, and that these conditions had a substantial effect on employment; however, this does not preclude a finding that PTSD also substantially affects employment. The evidence of record shows that the Veteran's PTSD symptoms have only worsened since he was service-connected for the disability in 2006, and they have had a significant effect on his ability to work. Given the impairment produced by his PTSD, as well as the other physical and mental limitations, it appears that the Veteran would not be capable of more than marginal employment in any type of work setting, whether physical or sedentary. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). Thus, the Board will resolve reasonable doubt in the Veteran's favor and find that he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Thus, entitlement to a TDIU is warranted in the instant case. ORDER Entitlement to a TDIU is granted. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs