Citation Nr: 18155888 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 09-02 829 DATE: December 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The probative evidence of record is at least in relative equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1971 to March 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 2015, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This case was previously remanded by the Board in September 2012, January 2015, July 2015, and September 2016. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In July 2017, the Board denied entitlement to a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a May 2018 Joint Motion for Remand (JMR), vacated the July 2017 Board decision and remanded the issue to the Board for readjudication. In this decision, the Board grants entitlement to a TDIU. The Agency of Original Jurisdiction (AOJ) will set an effective date for the grant of entitlement to a TDIU after determining the date on which the Veteran was last able to secure or follow a substantially gainful occupation due to his service-connected disabilities and, thus, became totally disabled due to service-connected disabilities. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). 1. Entitlement to a TDIU The Veteran contends that he is unable to secure or follow a substantial gainful occupation due to his sole service-connected posttraumatic stress disorder (PTSD) with Alcoholism and Drug Use Disorder, rated 70 percent. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. In this case, the Veteran has a single service-connected disability ratable at 60 percent or higher throughout the relevant period. Therefore, the percentage requirements for a TDIU were met throughout the relevant period. In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. The Veteran indicated on a July 2006 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, that he last worked, and had become too disabled to work, in March 2005. He reported that he has a high school education with no additional training. He also indicated that he most recently worked as a bartender. The Veteran stated he has not been able to work under close supervision since he returned from Vietnam. The Veteran’s last employer was contacted for additional information on the terms and conditions of the Veteran’s employment. In December 2008, the employer returned a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. On the form, the employer indicated that the Veteran worked up to 30 hours per week as a bartender and was laid-off in March 2006. The Veteran submitted a statement in June 2006. He stated he has always worked on his own because he cannot get along with people. The Veteran further stated his last job was as a bartender without supervision, however when management changed he was laid-off because he was consuming about a gallon of rum a day while working. In August 2006, VA received a buddy statement from the Veteran’s former employer, B. D. B. D. stated he has known the Veteran for forty years and they previously worked together at the same plant. B. D. stated that the Veteran did not like the work or his fellow employees and was hard to get along with, therefore the Veteran left the plant because he was not able to get along with others. In June 2005, B. D. became the trustee of the local Eagles Lodge and the Veteran was one of the employees. B. D. stated that the Veteran had great resistance and disdain for being treated the same as everyone else and could not conform to the new responsibilities, schedules and job description. The Veteran became abusive to customers, fellow employees, and officers. B. D. stated the Veteran became so disruptive with his absences, attitude, and work that the Veteran needed to be terminated. B. D. stated the Veteran is not happy working with or around other people. The Veteran was afforded a VA PTSD examination in July 2008. During examination the Veteran stated he had been unemployed for the past 3 years after being laid-off from his bartender job where he could consume as much alcohol as he wanted. He stated he was laid-off due to agitation at work toward his employer. The Veteran did not contend that his unemployment was due to the effects of his mental disorder. The VA examiner stated the Veteran did not have total occupational and social impairment due to his PTSD signs and symptoms. The Veteran testified at the May 2015 Board hearing that he last worked in 2006 as a bartender, and no longer works because of his PTSD and because he is not able to be around people anymore. The Veteran further stated that he has also worked manual labor jobs as a road worker, at a fiberglass plant, and with pottery. The Veteran further testified that all of his work since returning from Vietnam has been marginal. The Veteran was provided a VA PTSD examination in September 2015. The VA examiner noted the Veteran had difficulty describing his most recent work history, but he indicated that one of his most recent jobs was at a fiberglass plant. The VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or work like setting. The examiner described the Veteran’s level of occupational and social impairment as constituting reduced reliability and productivity. In March 2017 the Veteran was afforded a VA PTSD examination. At the examination, the Veteran reported that he had been a bartender until 2006, when he was let go due to his alcohol use. He further reported he had not worked since that time and described himself as unable to keep a job for more than six months. The Veteran stated he continued to use alcohol and cannabis on a regular basis and does not see a problem with his use. The Veteran stated he has had limited contact with mental health services and denied any individual or group counseling. The VA examiner noted symptoms of anxiety, chronic sleep impairment, 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 a work like setting. The examiner opined that the Veteran’s PTSD symptoms would negatively impact his ability to interact with others in a work situation, especially with regard to working cooperatively with supervisors. The examiner further opined that the Veteran is not likely to be a team player and tends to resent being given order or directions. Additionally, the Veteran is not focused on, or interested in, meeting expectations in a work environment. The VA examiner described the Veteran’s level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In view of the foregoing, the Board finds that, with resolution of doubt in the Veteran’s favor, the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The evidence of record reflects that the Veteran was last employed in 2006 at an occupation that had zero supervision. He was laid-off from this employment after supervision increased and he was required to follow directions and work at scheduled times. The evidence further shows that since returning home from Vietnam the Veteran has not been able to maintain employment at a single job for an extended period of time. Additionally, the Veteran’s ability to perform any kind of employment is shown to be eroded by his service-connected PTSD, which affects his memory, his ability to interact with others, to adapt to stressful circumstances, and difficulty in establishing and maintaining effective work and social relationships, all of which are often required to secure or follow a substantial gainful occupation. In short, the Veteran’s service-connected PTSD with Alcoholism and Drug Use Disorder, limits him to a very restricted range of employment that would not require supervision, interaction with customers, or the need to follow a regular work schedule. In other words, the Veteran would require a sheltered environment that would accommodate his substantial limitations. Indeed, the Veteran’s most recent job was in a sheltered environment for a friend he knew for forty years that had no supervision or schedule. Such work constitutes marginal employment, which cannot be considered substantially gainful employment. See 38 C.F.R. § 4.16 (a). The Board concludes that the probative evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disability. As such, the evidence is at least at equipoise as to whether the Veteran is entitled to a TDIU. Therefore, with resolution of doubt in the Veteran’s favor, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board again notes that the AOJ will set an effective date for the award of a TDIU after determining the date on which the Veteran was last able to secure or follow a substantially gainful occupation. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel