Citation Nr: 18141419 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-21 022 DATE: October 10, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 27, 2016 is granted. FINDING OF FACT It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for assignment of TDIU prior to December 27, 2016 due to the Veteran's service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION At the time of the hearing, the Veteran revoked prior representation. Considering the procedural history of this appeal, the Board finds this revocation effective. At the hearing, the Veteran indicated he was submitting a new VA Form 21-22a, appointing an individual under 38 C.F.R. § 14.630. This form, however, was not submitted. Considering the above, the Board finds that the Veteran is currently unrepresented. The Veteran contends that he is unable to secure or follow a substantially gainful occupation due to his service-connected posttraumatic stress disorder (PTSD). In December 2014, he reported that he has one year of college education. He testified that he last worked in October 2013 at Lowe’s working in stock. He also reported he last attended school in 2004 and was unable to proceed with vocational rehab due to severity of PTSD symptoms. 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, 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 or follow a substantially gainful occupation as a result of his service-connected disabilities 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 a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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 (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 United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Prior to December 27, 2016, the Veteran’s service-connected disabilities included PTSD, rated 50 percent disabling prior to June 15, 2016 and 70 percent disabling thereafter; right and left lower extremity varicose veins, each rated 10 percent disabling; left and right hip osteoarthritis, each rated noncompensable; left hip osteoarthritis, rated 10 percent disabling; degenerative disc disease, rated 10 percent disabling; left and right knee patellofemoral syndrome (limited flexion), each rated 10 percent disabling; left ankle, rated 10 percent disabling; and gastroesophageal reflux disease, rated 10 percent disabling. Prior to December 27, 2016, the Veteran had a combined evaluation of 90 percent. Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). During an April 2014 VA examination, the Veteran reported he worked at Lowe’s from 2012 to 2013, however, after an altercation with his boss, he punched a medicine cabinet and that job came to an end. The examiner noted the Veteran was working at the VA as part of the Compensated Work Therapy (CWT) program testing water quality. The Veteran endorsed symptoms of depressed mood, anxiety, panic attacks, chronic sleep impairment, and mild memory loss. A May 2014 VA progress note indicates the Veteran successfully completed CWT and is interested and capable of competitive employment. In a January 2015 VA examination, the examiner noted the Veteran’s work history including CWT though at least August 2014. The examiner indicated he initially worked in water testing and was changed to warehouse on campus due to absenteeism due to appointments. The Veteran reported he wanted to go back to school, but he has problems with stress and memory. Again, the Veteran endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. In a May 2015 notice of disagreement, the Veteran asserted he broke his hand at work because he could not keep his cool. He stated he does not sleep and cannot leave the house. He cannot keep a job and he feels like he cannot live life on his own. The Veteran testified before the undersigned Veterans Law Judge in a July 2018 videoconference hearing. The Veteran reported he was a night stocker at Lowe’s and he lost his cool in an altercation with his boss. The Veteran reported he went to community college for a year in 2011, but left after an altercation with two students. The Veteran stated he participated in CWT, but had problems due to back and joint pain for which he is service connected.   The Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports that the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel