Citation Nr: 18142502 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-30 855 DATE: October 17, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The most probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s service-connected disabilities preclude him from securing or maintaining substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for a total disability rating for compensation purposes based on individual unemployability (TDIU) are met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1982 to March 1983, from November 1984 to March 1993, and from February 2003 to April 2004. The Veteran served in the National Guard from July 2005 to May 2006. This matter comes to the Board on appeal from a December 2015 rating decision. VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Entitlement to a TDIU is granted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient disability to bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is currently service connected for acquired psychiatric disabilities to include PTSD and major depressive disorder, rated at 70 percent. The Veteran is also service connected for erectile dysfunction, rated as noncompensable. The Veteran has not alleged and the record does not show occupational limitations due to his erectile dysfunction. Due to the Veteran’s 70 percent rating for psychiatric disabilities, the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) for a TDIU. As such, the only remaining question before the Board is whether the Veteran is able to secure and follow a substantially gainful occupation. The record shows that the Veteran has a high school diploma, and some training as an automotive technician. The Veteran has a work history as a ship fitter. However, the record reflects that the Veteran has had many work positions, many of which only lasted for short periods of a year or two. The Veteran last worked in 2010, when he was laid off. The record also reflects that the Veteran is currently incarcerated. A VA examination in August 2011 found that the Veteran had difficulty establishing and maintaining work relationships. A VA examination in October 2015 found that the Veteran’s occupational and social impairment was characterized by an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. However, the examiner noted complaints of anger outbursts with verbal or physical aggression. The examiner noted that the Veteran had difficulty adapting to stressful circumstances including work-like settings. The examiner stated that the Veteran would have problems with co-workers and may display anger outbursts. The examiner then stated that the Veteran has an intermittent inability to perform activities of daily living and maintaining personal hygiene. The Board notes that the Veteran was granted Social Security Disability benefits solely based on his psychiatric disabilities. The record notes that the Veteran’s spouse reported that the Veteran had difficulty with hygiene, was forgetful, and does not take orders from others well. She reported he did not handle stress well, and does not leave the house much. A residual functional capacity report filled out by a medical professional appurtenant to the decision indicated that the Veteran had marked limitations with regard to ability to accept instructions and respond appropriately to supervisors, as well as the ability to get along with coworkers. The examiner further clarified that the Veteran would have difficulty interacting with supervisors and coworkers on a basic level. The Board affords great probative weight to the findings of the Social Security determination professional. The Board notes that the October 2015 VA examiner indicated that the Veteran’s condition manifest in such a way that the Veteran generally functioned satisfactorily with regard to hygiene and conversation. The record consistently indicates that the Veteran has difficulty getting along with others in a work setting, and that he has trouble with personal hygiene. The Board notes that the Veteran’s current incarceration speaks to his difficulty interacting with others. The Board finds that the record as a whole shows significant difficulty interacting with others beyond close family. The Veteran would have great difficulty in any occupation given his difficulty with authority. Given the above, the Board finds that in taking a complete view of the Veteran’s disability picture, it   is at least as likely as not that the Veteran is unable to secure or maintain a substantially gainful occupation. In affording the benefit-of-the-doubt to the Veteran, entitlement to a TDIU is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel