Citation Nr: 18141479 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 12-32 954 DATE: October 10, 2018 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities preclude him from being able to secure or follow substantially gainful employment. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to February 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which among other things, denied entitlement to a TDIU. In May 2012 the Veteran filed his notice of disagreement, was issued a statement of the case in October 2012, and in November 2012 perfected his appeal to the Board. Entitlement to a total disability rating due to individual unemployability The Veteran stated that his peripheral neuropathy of the right and left leg, peripheral artery disease of the right leg, and service-connected PTSD have rendered him unemployable. A TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). 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, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. In this case, the Veteran is service connected for the following: posttraumatic stress disorder and major depressive disorder, evaluated as 70 percent disabling from July 24, 2017; right leg peripheral artery disease, evaluated as 40 percent disabling from September 22, 2009; diabetes mellitus, evaluated as 20 percent disabling from July 11, 2006; right lower extremity peripheral neuropathy, evaluated as 20 percent disabling from June 28, 2013; left lower extremity peripheral neuropathy, evaluated as 20 percent disabling from June 28, 2013; left leg peripheral artery disease, evaluated as 20 percent disabling from February 28, 2017; right upper extremity peripheral neuropathy, evaluated as 10 percent disabling from September 22, 2009; left upper extremity peripheral neuropathy, evaluated as 10 percent disabling from September 22, 2009; tinnitus, evaluated as 10 percent disabling form July 24, 2017; bilateral hearing loss, evaluated as noncompensable from July 24, 2017. The Veteran’s combined rating is 90 percent from September 22, 2009 and 100 percent from July 24, 2017. As the Veteran has 2 or more disabilities with at least one rated at 40 percent or more and sufficient additional disability to bring the combined rating to at least 70 percent, the Veteran meets the criteria under 38 C.F.R. § 4.16(a) for assignment of a TDIU on a schedular basis. October 2006 post-service treatment records provided by the Social Security Administration indicate the Veteran worked in maintenance lifting pipes, running a dredge boat, forklift and operating a truck. A September 2008 VA examination report noted the Veteran retired in 2007 when he became disabled after spinal cord surgery. The Veteran stated he would still be working had he not become paralyzed. His November 2009 application for increased compensation based on unemployability (VA 21-8940) indicated the Veteran became too disabled to work in April 2008, last worked full time in 2006, and has 4 years of college education. An August 2017 disability benefits questionnaire (DBQ) noted the Veteran’s PTSD depression and anxiety symptoms caused difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances including work or a work-like setting. An August 2017 DBQ noted the Veteran’s bilateral hearing loss impacts his ability to work as he has to ask people to repeat themselves, and if there is a bunch of noise he cannot hear too well. The Veteran stated in an April 2018 physical therapy note that he worked part-time security at a stadium but stopped because it was too much to propel himself in the stadium and navigate the crowds. The above evidence of record reflects that the Veteran’s service connected disabilities have rendered him unemployable. While the September 2008 examiner noted the Veteran would still be working had he not become paralyzed due to non-service-connected spinal cord surgery, the August 2017 examiner noted the Veteran suffered from PTSD, depression, and anxiety symptoms which make it difficult for the Veteran to adapt to stressful circumstances including in a work-like setting. The Veteran reported having difficulty hearing which impacts his ability to work, and considering he was most recently employed as a stadium guard, his hearing loss would render him incapable of performing his duties as a security guard in a noisy stadium. Additionally, the Veteran’s PTSD, depression and anxiety would make it difficult for the Veteran to handle the stress associated with dealing with large crowds as is required of a stadium security guard, or perform the requisite duties of any position for a man of the Veteran’s education and experience as a maintenance worker. Thus, while the Veteran’s non-service connected spinal cord disability would prevent him from working, the relevant question in this case is whether, regardless of his non-service connected disabilities, the Veteran’s service connected disabilities would render him unable to secure and follow substantially gainful employment. As the above lay and medical evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, entitlement to a TDIU is warranted. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Board will allow the RO to determine, in the first instance, the appropriate effective date as well as whether the TDIU is rendered moot by the 100 percent rating from July 24, 2017. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”); Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008) (a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation benefits pursuant to 38 U.S.C. § 1114(s)). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel