Citation Nr: 18144260 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-14 054 DATE: October 24, 2018 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1943 to September 1946. The Board of Veterans’ Appeals (Board) issued a decision in April 2015, which in part, decided a TDIU claim was not part and parcel of the Veteran’s increased rating claim for posttraumatic stress disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). By an April 2016 Memorandum Decision of the Court, the Court set aside the Board’s April 2015 decision and remanded that decision for further proceedings consistent with the Memorandum Decision, which was to consider the issue of entitlement to TDIU as “part and parcel” of the initial increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a November 2016 decision, the Board denied TDIU. The Veteran appealed the Board’s decision to the Court. By an March 2018 Memorandum decision of the Court, the Court set aside the Board’s November 2016 decision and remanded that decision for further proceedings consistent with the Memorandum decision, which was to provide adequate reasons and basis for negative treatment of the favorable August 2016 vocational assessment. Entitlement to TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. The Board first notes that the Veteran has been assigned a 70 percent evaluation for service-connected PTSD; thus, he meets the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). The Board notes that the Veteran has contended that he is unable to secure gainful employment due to his service-connected disabilities. The Veteran received his Bachelor’s degree in business, according to the April 2014 Application for Increased Compensation Based on Unemployability. The Veteran worked in sales between 1955 to 1994, approximately 40 years. He last worked full time in 1994. See September 2016 Application for Increased Compensation Based on Unemployability. The December 2013 and May 2014 VA examiners found the Veteran’s PTSD manifested in mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or worklike settings. A November 2015 note from Dr. L.P. gave an opinion the Veteran was unemployable. The Veteran provided an August 2016 vocational assessment. The vocational expert reviewed the Veteran’s VA file and conducted an interview of the Veteran by phone. She concluded that the Veteran was unemployable due to his PTSD symptoms. The Board notes the Veteran has a high level of education, decades of experience in sales, and he is not service-connected for any physical disabilities. Although sedentary and laborious forms of employment may be available to the Veteran, there is no evidence in the record to show the Veteran has the experience to perform such forms of employment. The Veteran’s PTSD symptoms would negatively affect the Veteran’s ability to continue in a sales environment dependent on socializing and building relationships. In addition, the Veteran earned his degree decades prior to the proliferation of modern computers in the work-place, and there is no evidence to show the Veteran has the requisite knowledge of computers to be employable in a sedentary environment. Viewed as a whole, the evidence of record is in equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. After resolving all doubt in his favor, the Board finds that the Veteran’s service-connected disability, when compared to his level of education and work experience, renders him unable to secure and follow a substantially gainful employment. Based on the foregoing, and in giving the benefit of the doubt to the Veteran, the Board finds that TDIU is warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim is thus granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel