Citation Nr: 18145732 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-58 317 DATE: October 30, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT The Veteran’s sole service-connected disability (PTSD) is not shown to render him unable to secure or maintain substantially gainful employment consistent with his education and experience. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met, but a TDIU rating is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSION A TDIU rating is warranted when a veteran is precluded, by reason of his or her service-connected disabilities, is precluded from obtaining and maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, the central inquiry in a TDIU claim 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). Schedular rating requirements for a TDIU rating are: If only one disability is service-connected, it must be rated 60 percent disabling or higher. If two or more disabilities are service-connected, at least one disability must be rated 40 percent or more, and the additional disability ratings must be sufficient to result in a combined rating of 70 percent or more. 38 C.F.R. § 4.16 (a). 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 or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the schedular criteria for a TDIU are met by the 70 percent rating assigned for PTSD, throughout. Thus, the analysis turns to whether the evidence supports that the PTSD precludes the Veteran from participating in substantially gainful employment. On his April 2015 application for TDIU, the Veteran reported he completed one year of college (with no additional training or education). He had been employed by two companies in the prior ten years, performing warehouse duties at an average monthly income of $9,000 to $10,000. The record does not include information from the employer regarding the reason for the Veteran’s terminations of those employment. On June 2010 private examination, the provider opined that the Veteran’s disability significantly interfered with his professional life; in particular, his hyperirritability interfered with his ability to initiate or sustain work relationships. As a result, he was assessed as permanently and totally disabled, both then and during a May 2012 follow-up consultation. On July 2014 private examination, the Veteran reported that recently became unemployed after spending the past several years working as an overseas construction contractor. Although the employment was in Afghanistan and Iraq, he was able to “do his work because he was inside most of the time.” He indicated that he felt was unable to concentrate or focus at work, and applied for disability benefits at that time. A January 2015 disability evaluation report notes various occupational limitations due to various nonservice connected disabilities, to include diabetes, gout, hypertension, and various musculoskeletal impairments; mental impairment noted included impaired understanding, concentration, memory, persistence, social interaction and adaptation, degree unspecified. A mental status evaluation among records received from VA notes the conclusion that while the Veteran’s functioning was below level expected for someone with his education and social and vocational background, he would likely relate adequately to co-workers and supervisors, but may have some trouble with temper. On April 2015 VA examination, the Veteran was assessed as presenting with occupational and social impairment with 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. Upon review of the record the Board finds that the Veteran’s psychiatric disability is not shown to preclude his participation in substantially gainful employment. The Board does not disregard the impact of the Veteran’s psychiatric disability on his capacity to function due to such symptoms as chronic depression, anxiety, and impaired concentration. The 70 percent rating assigned reflects that there is occupational impairment. However, to substantiate this claim requires more than simply showing that the Veteran’s occupational capacity is limited by his psychiatric disability, it must be shown that he is in fact rendered unemployable due to the PTSD. The evidence of record does not show such pervasive interference with the Veteran’s occupational capabilities due to PTSD as to render him unemployable. Despite the frequency and severity of his symptoms, he maintained gainful employment until July 2014, at which time the Veteran vacated his position to pursue disability benefits. His own employment history clearly establishes his ability to maintain gainful employment, as he did between June 2010 and July 2014, despite his psychiatric symptoms. He has not reported a worsening of psychiatric disability since then, such that greater interference with his employability could now reasonably be expected (although treatment records suggest worsening of nonservice-connected disabilities, the impact of which may not be considered). Additionally, the Veteran remains relatively high-functioning despite his symptoms. He has consistently presented as capable of communicating appropriately and effectively with examiners, and with normal self-care, judgment, insight, and thought processes. Thus, any social impairment appears moderate in nature. Notably, the April 2015 VA examiner concluded that the Veteran’s symptoms are productive of only an occasional decrease in work efficiency and intermittent periods of the inability to perform work-related tasks. Such a level of moderate occupational impairment does not support the finding of a TDIU. The additional evidence similarly contradicts a finding of unemployability (due to service-connected disability). Although the Veteran receives Social Security Administration (SSA) disability benefits, the award was predicated upon a primary diagnosis of gout and a secondary diagnosis of osteoarthrosis and allied disorders rather than the Veteran’s psychiatric condition. Moreover, the Veteran himself has attributed his unemployability to a number of physical disorders which are not service-connected, including gout of the wrists, knees, and feet. See April 2015 application for benefits; April 2015 VA examinations. As such, the evidence of record does not establish that the Veteran’s service-connected psychiatric disability renders him unable to secure and follow a substantially gainful occupation. Instead, he appears to have left his prior employment voluntarily and due to factors unrelated to his service connected disability. The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel