Citation Nr: 1803144 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 10-43 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1987 to August 1991, and from May 1, 1992, to May 9, 1992, as well as additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A statement asserted at an August 2015 VA examination reasonable raised the issue of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Since that time, this matter was remanded by the Board in June 2016 and April 2017. FINDING OF FACT The competent and credible evidence demonstrates that the Veteran's service connected disabilities are so severe that they preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1110, 1131, 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Merits of the Claim Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 his age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (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." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In determining whether the Veteran is eligible to receive TDIU benefits, the Board observes that the Veteran is currently service-connected for the following conditions: post-traumatic stress disorder (PTSD), evaluated as 70 percent disabling; hemorrhoids, evaluated as 20 percent disabling; chondromalacia patella of the right knee, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; history of a commuted fracture of the right index finger, evaluated as 10 percent disabling; right knee chondromalacia, evaluated as 10 percent disabling; degenerative arthritis of the lumbar spine, evaluated as 10 percent disabling; right knee limitation of extension, evaluated as 10 percent disabling; bilateral hearing loss, evaluated as 0 percent disabling; and pseudofollicultitis barbae, evaluated as 0 percent disabling. The Veteran's combined disability evaluation is 90 percent. See 38 C.F.R. § 4.25. As such, the Veteran meets the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a). A TDIU may be granted when the record shows that employment is marginal. Marginal employment is not considered substantially gainful employment, and is deemed to exist when a veteran's annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Whether a veteran is capable of more than marginal employment must be considered. Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). The Veteran stated in his June 2016 claim that his past year's earnings were $10,149, which is below the poverty threshold for a three-person household. This employment is therefore considered marginal. As such, the pertinent question is whether his service-connected disabilities preclude substantially gainful employment. In an August 2015 VA examination, the Veteran reported being employed on a part-time basis as a security officer with Chowan University, where he works approximately four hours per day, five days per week. He indicated that he performs well and has not received any negative feedback from his supervisors. However, he reported a belief that his frequent difficulties with anger and irritability have precluded him from seeking full-time employment or an increased workload. In his June 2016 claim for TDIU, the Veteran indicated that all of his service-connected disabilities prevent him from securing or following any substantially gainful employment. However, in a separate section of the claim, the Veteran only listed his PTSD and knee symptoms as making his employment difficult. The Veteran indicated that he continues to work 20 hours per week as a public safety officer for Chowan University. In an August 2016 VA PTSD examination, the Veteran reported that he had tried to work full-time in his current employment, but was unable to tolerate personal interactions with other public safety officers. He reported arguments and difficulty controlling his temper. His supervisor recommended the Veteran take a part-time position that involves more independent security work driving a golf cart around the university. The Veteran reported his only difficulty was when he has a shift in the cafeteria, as he has difficulty dealing with crowds and becomes anxious and irritable. In a separate August 2016 VA examination, the examiner found that due to the Veteran's knee conditions, the Veteran may have difficulty performing physically strenuous job duties that require climbing stairs or ladders, kneeling, squatting, or walking for prolonged periods. However, the examiner opined that sedentary job duties should not cause the Veteran any limitation. Additionally, the examiner noted that the Veteran's service-connected hemorrhoids and fractured index finger do not cause any functional loss that would affect the Veteran's employment. In a May 2017 Request for Employee Information form, the Veteran reported that he continues to work part-time as a public safety officer at Chowan University. The Veteran reported beginning his employment in April 2007, and that he currently works 19 hours per week. The Veteran underwent a Disability Benefits Questionnaire (DBQ) in October 2017. The examiner noted the Veteran's employment as part-time as a public safety officer at Chowan University. In that capacity, the Veteran reports that his knees and back sometimes hurt at the end of a workday. With regard to the Veteran's skin and rectum conditions, the examiner found there to be no functional employment limitations whatsoever. With regard to the Veteran's hand condition, the examiner found the only limitation would be in an employment setting requiring repetitive fine motor skills. The Veteran's current employment does not require such skills, and the Veteran further reported having previously carried heavy bags of coins for an armored truck company with no mention of functional limitation of the right hand or finger. Regarding his knee and back conditions, the examiner found that the Veteran is not suited for heavy manual labor requiring repetitive lifting or bending at the knees or lumbar spine, nor is he suited for employment requiring kneeling or climbing, as in utility service work. However, the examiner found no functional limitation to sedentary administrative work requiring minimal to moderate walking. To this end, the Veteran reported being able to squat and lift up to 15 pounds without difficulty, though not repetitiously. Finally, with regard to the Veteran's PTSD, the Veteran stated that his employer has sought employ him in a full-time capacity, but the Veteran has declined out of concern that his PTSD would not allow him to fulfill his duties in a satisfactory manner. The Veteran reported experiencing problems with concentration which lead him to take longer to complete work tasks. He reported that he has manifested irritability when interacting with his co-workers and other university employees. The evidence of record shows that the Veteran has difficulty adapting to stressful situations, has great difficulty establishing work relationships, is easily distracted, and has difficulty accomplishing work tasks. The VA examiner agreed with the Veteran's contentions that the Veteran's PTSD, specifically, currently precluded the Veteran from full-time employment. The Board finds the evidence shows that the Veteran is only able to sustain marginal employment. Accordingly, a TDIU is granted. ORDER A TDIU is granted. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs