Citation Nr: 18155248 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-32 135 DATE: December 3, 2018 ORDER Subject to the law and regulations governing payment of monetary benefits, an award of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) from May 27, 2011, is granted. FINDING OF FACT From May 27, 2011, to February 27, 2018, the Veteran’s service-connected disabilities precluded substantially gainful employment consistent with his work and education history. CONCLUSION OF LAW The criteria for entitlement to a TDIU from prior to February 28,2018, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from September 1969 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2018, the Veteran presented sworn testimony at a hearing before the undersigned. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Subject to the law and regulations governing payment of monetary benefits, an award of TDIU from May 27, 2011, is granted. 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, this disability shall be ratable at 60 percent or more, and that, 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). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). On May 27, 2011, VA received the Veteran’s claim for a TDIU. Since that time, the Veteran’s service-connected disabilities have meet the schedular criteria for a TDIU. In this regard, since May 27, 2011, his posttraumatic stress disorder (PTSD) and coronary artery disease have been rated 70 and 60 percent disabling, respectively. He has also been in receipt of 100 percent disabling ratings for lung and brain cancer from February 28, 2018, and May 31, 2018, respectively. As TDIU is warranted for disabilities rated less than 100 percent disabling, the Board cannot consider the impact of his lung and brain cancers. See 38 C.F.R. § 4.16. The Board finds that the Veteran’s service-connected PTSD and coronary artery disease alone have been of sufficient severity to produce unemployability, particularly in light of the Veteran’s education and employment experience. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Beaty v. Brown, 6 Vet. App. 532, 534 (1994). Initially, the Board finds that the Veteran is limited to physically demanding job opportunities due to his partial high school education and exclusive experience as a construction worker from 1972 to 2009. See, e.g., Social Security Administration (SSA) Disability Evaluation (March 16, 2011). The evidence shows that the Veteran specialized in installing drywall: a labor intensive craft involving constant, standing, lifting, climbing, and walking. Id. The Veteran’s construction work also involved working with twelve to thirty coworkers. Id. The Veteran has consistently reported that he has been unemployed since 2009. See id. and VA Form 8940 (May 27, 2011). The Board finds the manifestations of his heart disability preclude the labor-intensive tasks associated with construction work, especially installing drywall. Additionally, the evidence shows that the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas, due to symptoms such as depressed mood, anxiety, chronic sleep impairment, memory loss, disturbances in mood and motivation, and difficulty establishing relationships and adapting to stressful circumstances. See, e.g., VA examination (August 9, 2011). There is little doubt that these symptoms significantly impair his ability to perform collaborative work consistent with his occupational experience. Notwithstanding his additional service-connected disabilities, the Board finds that the Veteran’s PTSD and coronary artery loss alone have been of sufficient severity to produce unemployability consistent with his education and employment experience. For these reasons, a TDIU prior to February 28, 2018, is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel