Citation Nr: 18146448 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-17 122 DATE: October 31, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran is service connected for the following disabilities: PTSD rated 70 percent disabling as of September 4, 2012; left knee instability rated 20 percent disabling as of November 29, 2017; left knee degenerative joint disease rated 10 percent disabling prior to April 5, 2017, 100 percent disabling from April 5, 2017 to May 30, 2017, and 10 percent disabling as of June 1, 2017; residual shrapnel scar left hand rated non-compensable as of July 12, 1968; and left knee surgical scar rated non-compensable as of April 5, 2007. 2. The Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1964 to July 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). In October 2018, the Veteran testified at a Board videoconference hearing before the undersigned. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “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(a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 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 age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). During the pendency of the appeal, the Veteran has been service connected for the following disabilities: PTSD rated 70 percent disabling as of September 4, 2012; left knee instability rated 20 percent disabling as of November 29, 2017; left knee degenerative joint disease rated 10 percent disabling prior to April 5, 2017, 100 percent disabling from April 5, 2017 to May 30, 2017, and 10 percent disabling as of June 1, 2017; residual shrapnel scar left hand rated non-compensable as of July 12, 1968; and left knee surgical scar rated non-compensable as of April 5, 2007. The Board notes the Veteran has met the schedular rating criteria as of September 4, 2012. The evidence of record includes a December 2012 VA examination in which the Veteran reported staying home most of the time and that he could not remember his last major social activity. The examiner noted a history of domestic violence resulting in imprisonment. The examiner also noted the Veteran had not worked since being fired for anger issues. In this regard, the examiner opined that the Veteran’s PTSD resulted in “significantly impaired ability to relate to other people, which would significantly impact upon his productivity in sales which was his former occupation.” Current symptoms included: depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran underwent another VA examination in March 2013. Current symptoms included: depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficult in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. A January 2016 VA psychiatric evaluation noted the Veteran reported low energy, and decreased sleep. In addition, the Veteran that nightmares disrupted his sleep, sometimes several times per night. The Veteran also endorsed suicidal ideation, but no plan or intent. A November 2016 VA mental health assessment noted current symptoms of depression, anxiety, reduced energy, ability to concentrate for only short periods of time, guilt, nightmares, flashbacks, daily intrusive memories, hypervigilance and avoidance of crowds. A December 2017 VA knee examination shows the Veteran reported sharp left knee pain rated a 7 on a scale to 10. Constant pain was reported when he rotated his left knee and pain was aggravated with walking or standing for long periods of time. In addition, the Veteran reported difficulty descending stairs. He was noted to ambulate with a limp. The Veteran was also noted to have undergone arthroscopic surgery in April 2017. The examiner noted pain on ROM and pain with weight bearing. The left knee disability was manifested by a reduction in muscle strength including flexion rated a 3 on a scale to 5, and extension rated a 4 on a scale to 5. A meniscal condition was found to result in a left knee meniscal tear and frequent episodes of joint pain. The examiner found that the left knee disability impacted the Veteran’s ability to work due an inability to stand or walk for prolonged periods of time. After a review of the evidence of record, the Board finds that the totality of the record indicates the functional impairments caused by the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. First, the evidence of record indicates the functional impairments caused by the service-connected disabilities would likely prevent the Veteran from obtaining or maintaining an occupation involving physical labor. This includes his left knee disability which makes it difficult for the Veteran to lift heavy objects or to work on his feet for a normal work day. Second, the Board finds the service-connected PTSD would likely prevent the Veteran from following a substantially gainful sedentary occupation or an occupation involving physical labor. First, the evidence of record indicates the Veteran has struggled with anger, irritability and difficulty in adapting to stressful circumstances, including work or a worklike setting, and difficulty in establishing and maintaining effective work and social relationships. During this period on appeal, the Veteran’s PTSD has also resulted in a limited ability to concentrate. The Board finds that the combined persistent functional effects would likely prevent the Veteran from being able to work around others, be effectively supervised, sustain the focus and attention to learn necessary skills, or to complete a full, productive work schedule in a substantially gainful occupation. Accordingly, based on the evidence of record, the Board finds the functional effects of the Veteran’s service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation throughout the appeal period. Therefore, entitlement to a TDIU is warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel