Citation Nr: 18143370 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 09-28 388 DATE: October 19, 2018 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran’s service-connected disabilities are shown to preclude him from either obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are shown to have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to March 1973. In September 2010, the Veteran testified before the undersigned Veterans Law Judge. In April 2016, the Veteran testified at a travel board hearing before a Veterans Law Judge who is no longer with the Board. A copy of the hearing transcript is of record. The Veteran was notified that he is entitled to another hearing. However, in September 2018 he waived his right to another hearing. Accordingly, the Board will proceed. See 38 U.S.C. § 7107 (c). 1. Entitlement to a TDIU. The Veteran asserts that he is entitled to a TDIU. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more. 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). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the veteran’s education, employment history and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). A TDIU claim “presupposes that the rating for the [service-connected] condition is less than 100 percent, and only asks for TDIU because of ‘subjective’ factors that the ‘objective’ rating does not consider.” Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). The Veteran’s current ratings for his service-connected disabilities are as follows: 70 percent disabling for PTSD, and 10 percent disabling for tinnitus. Accordingly, he meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). The question remaining is whether the Veteran is unable to secure and follow a substantially gainful occupation due to his service connected disabilities. In February 2017, the Board denied this claim. The Board noted that the evidence included a decision of the Social Security Administration (SSA), dated in about August 2008, indicated that the SSA determined that the Veteran is disabled due to psychiatric symptoms. However, the Board determined that the other evidence of record did not show that the criteria for a TDIU had been met. Citing evidence dated between 2013 and 2016. The Veteran appealed the Board’s February 2017 denial to the United States Court of Appeals for Veterans Claims (Court). In a February 2018 Order, the Court granted a Joint Motion (JMR) of the parties and remanded the case to the Board for action consistent with the Joint Motion which found that the Board had not fully considered the combined effects, if any, of the Veteran’s PTSD and his tinnitus on his ability to obtain or maintain substantially gainful employment. Thereafter, the Veteran has submitted evidence that includes a vocational assessment from C.P., M.S., CRC, dated in June 2018, which shows that Ms. C.P. stated that the Veteran’s claims file had been reviewed. She concluded that the Veteran is more likely than not unable to secure and follow substantially gainful employment due to his service-connected PTSD. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unable to follow a substantially gainful occupation. Accordingly, affording the Veteran the benefit of all doubt, the Board finds that he cannot secure and follow a substantially gainful occupation due to service-connected disability, that the criterion for TDIU are met, and that his appeal is granted. The Board notes that it is for the RO to assign the effective date for TDIU in the first instance, and there is therefore no issue involving the effective date for TDIU that is currently before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel