Citation Nr: 18139918 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-16 415 DATE: October 1, 2018 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. REFERRED New issues were raised by the Veteran in three separate Applications for Disability Compensation and Related Compensation Benefits dated July 18, 2018, July 20, 2018, and August 7, 2018. These issues are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2004 to February 2008. The claim of entitlement to a TDIU was originally denied in a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In its February 2016 decision, the Board found that a claim of entitlement to a TDIU was raised by the record in the Veteran’s statements, including his April 2015 Board hearing testimony. Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the Veteran indicated that he was experiencing increasingly limited employability due to his service-connected posttraumatic stress disorder (PTSD) with substance abuse and skin disability. The Veteran alternatively reported that he was employed as a security guard and that he was unable to perform in a job or secure gainful employment due to the severity of his PTSD with substance abuse and because he was embarrassed to be out in public due to his skin disability. Based on this testimony, the Board remanded the Veteran’s TDIU claim for additional development and consideration by the RO. The RO again denied the claim of entitlement to a TDIU in its August 2017 supplemental statement of the case. Nevertheless, in its March 2018 decision, the Board remanded this matter for additional development after newly received evidence revealed that the Veteran was suspended from work as a full-time security guard primarily due to his psychiatric symptoms. See July 2017 VA mental health treatment note. Pursuant to the Board’s March 2018 remand directives, the RO sent the Veteran a notice letter on regarding his claim of entitlement to a TDIU and requested that the Veteran complete a VA Form 21-8940 and submit any additional evidence in support of his TDIU claim. In July 2018, the Veteran responded to the RO’s notice letter and indicated that he did not have any additional information or evidence to give VA to support his claim. He elected to have VA decide his claim as soon as possible. While other issues have been raised (see above), the Board believes that to further delay the adjudication of this case is not warranted. The Board finds that the RO has substantially complied with the March 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board will proceed with appellate review and adjudication of the Veteran’s TDIU claim. Entitlement to a TDIU due to service-connected disabilities. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection is currently in effect for PTSD with alcohol and marijuana dependence, rated 70 percent disabling; pseudofolliculitis barbae, rated 50 percent disabling; painful scars of the chest area associated with pseudofolliculitis barbae, rated 20 percent disabling; tinnitus, rated 10 percent disabling; and linear scars associated with pseudofolliculitis barbae, rated noncompensable. The Veteran’s combined evaluation for compensation is currently 90 percent from June 22, 2012. Therefore, the Veteran meets the percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16(a). Even though the Veteran meets the threshold percentage requirements for a TDIU, the question that remains before the Board is whether the Veteran is unable to obtain or maintain substantially gainful employment. Significantly, in this case, the evidence of record shows that the Veteran is in fact working. A July 2018 VA psychiatric examination reflects that the Veteran’s service-connected PTSD with alcohol and marijuana dependence results in occupational and social impairment with deficiencies in most areas. However, the examination report indicates that the Veteran maintains fulltime employment. Specifically, the following occupational assessment was noted: The Veteran reported that he is now “able to function on the job site,” but noted that previously his employment at USC-Beaufort as a state law officer was compromised due to his pattern of problematic alcohol use which had worsened. He explained that his drinking had become a maladaptive attempt to facilitate sleep and manage his daytime mental health symptoms such as anxiety, stress-response, and anger and irritability. He noted that he “was completely honest” with his leadership about his alcohol use, hospitalization, and mental health diagnoses and treatment, and indicated that due to his character they have worked with him to ensure that he remains employed with them. Based on the recent objective evidence of record, it appears that the Veteran remains gainfully employed and is no longer suspended from his full-time job. The Board notes that there is no indication from the record that the Veteran works in a protected environment or that his employment is not gainful. Therefore, the Board finds that while the Veteran does meet the schedular criteria for assignment of a TDIU, he is gainfully employed in a fulltime position. Therefore, while the Veteran will clearly have problems with his service connected disabilities, his service-connected disabilities (at this time) clearly do not render him unable to secure and follow gainful employment in a variety of settings. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel