Citation Nr: 18148589 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-25 485 DATE: November 8, 2018 ORDER Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected PTSD (post-traumatic stress disorder) renders him unable to obtain or maintain gainful employment. CONCLUSION OF LAW The criteria for a TDIU due to PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1970 in the United States Marine Corps, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran requested a hearing on his substantive appeal, but he withdrew the request in a letter dated January 12, 2018. Thus, this decision was rendered on the basis of the Veteran’s documentary submissions. 1. Entitlement to total disability based on individual unemployability due to service-connected posttraumatic stress disorder Total disability will be considered to exist where there is present any impairment of mind and body that 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 the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is “that which is ordinarily followed by the non-disabled 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 (1991). The Court of Appeals for Veterans Claims further defined “substantially gainful employment” as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358 ; 38 C.F.R. § 4.16(a) (“marginal employment shall not be considered substantially gainful employment”). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service connected disabilities but the functional impairment caused solely by his service-connected disabilities. At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU for the entirety of the appeal period. More specifically, the Veteran has one service-connected disability with a rating exceeding 60 percent, PTSD. The Veteran was granted a 70 percent rating for PTSD effective June 8, 2010, the date of the Veteran’s claim for an increased rating and for TDIU. Thus, the schedular requirements for TDIU are met. Regarding the Veteran’s education, training, and occupational history, the record reflects that the Veteran graduated high school and completed sales trainings facilitated by his employer at various times between 1988 and 1997. His DD-214 indicates a military occupational specialty of motor transport. Post-service, he worked several short-term jobs including dealing cards at a casino and pumping gas at a gas station before working as an auto salesman for 18 years. The Veteran then worked in property maintenance for five years. During this time, the Veteran has indicated that he was arrested for assault and battery several times, and that some violent outbursts took place at work. One of the Veteran’s most recent employment experiences ended in termination for inability to follow rules. The Veteran discontinued employment in 2009. He has reported that he has no computer skills; he has no experience with Microsoft Office or the Internet, and he uses his home computer minimally. Moving beyond the Veteran’s education, training, and occupational history, the record contains evidence indicative of the impact of the Veteran’s PTSD on his ability to obtain and maintain substantially gainful employment. Specifically, in assigning the Veteran a rating of 70 percent for PTSD, the Board previously described the Veteran’s unprovoked irritability with periods of violence, inability to establish and maintain effective relationships, insomnia, and suspiciousness. Additionally, the evidence demonstrates that the Veteran’s PTSD causes difficulty focusing and building rapport with others would make it difficult for him to develop new employment skills. Further, in support of his claim, the Veteran’s representative submitted an opinion from a vocational expert who determined that the Veteran is unable to obtain or maintain substantially gainful employment since 2009 on account of hit PTSD Resolving all reasonable doubt in the Veteran’s favor, and in view of the occupational effects of the Veteran’s PTSD and the Veteran’s educational and occupational history and training, the Board finds that the Veteran’s service-connected PTSD precludes him from obtaining and maintaining substantially gainful employment. As such, entitlement to a TDIU on the basis of service-connected PTSD is warranted for the entire period on appeal. 38 C.F.R. § 4.16(a). Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Ahsan, Associate Counsel