Citation Nr: 18155899 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-55 815 DATE: December 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD), rated 70 percent disabling; left ankle arthritis, rated 10 percent disabling; residual scar on the left ankle, rated noncompensable (0 percent disabling); and papular dermatitis, rated noncompensable (0 percent disabling). His combined rating since September 2012 has been 70 percent, exclusive of a period for which he was in receipt of a temporary total rating. 2. The Veteran’s service-connected disabilities, alone, preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disability are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served from June 1994 to October 1994; from July 1997 to June 1999; and from January 2010 to December 2010. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Montgomery, Alabama. TDIU due to service-connected disabilities is granted. The Veteran asserts his service-connected disabilities render him unemployable. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. 3.340, 3.341, 4.16. The central inquiry 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). When it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when effects of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be attributed to the service-connected disabilities). The Veteran is currently service-connected for posttraumatic stress disorder (PTSD) now rated 70 percent disabling and left ankle arthritis, rated 10 percent disabling. His combined disability rating is now 70 percent. Hence, he has met the percentage requirements for a TDIU. 38 C.F.R. 4.16 (a). The remaining question is whether his service-connected PTSD and ankle disabilities preclude gainful employment for which his education and occupational experience may otherwise qualify him. The Veteran has a high school education and a March 2012 VA nursing note indicates he cannot read. Although the Veteran was employed previously as a sales associate, sanitation worker, bakery clerk, and cook, these work experiences are require physically labor. The Veteran is service connected for a left ankle disability and cannot stand for long periods of time. A July 2014 ankle Disability Questionnaire reported that the Veteran could not work as a store clerk because he could not stay standing without experiencing pain. The Veteran would also feel pain after walking 100 yards. The Veteran’s physical limitation prevents him from being able to perform the type of physical work he is qualified to do. This is exactly the sentiment expressed in the May 2013 Disability Benefits Questionnaire when the VA examiner wrote, “limitation on physical activity by ankle with prolonged standing or walking prevents this [V]eteran from obtaining or maintaining substantially gainful employment in physically active positions.” Furthermore, the Veteran’s service connected PTSD prevents him from being capable of obtaining and sustaining sedentary work around other persons. An April 2013 PTSD Disability Benefits Questionnaire stated that the Veteran “experiences irritability, hyperstartle, and suspicious[ness], and should not work with the public.” Although this same medical opinion indicated that the Veteran “could perform tasks in a relatively solitary work environment,” the other evidence including the Veteran’s limited education and occupational experienced reflects that it is unlikely that the Veteran would be able to obtain such employment. Moreover, whether a Veteran could perform the physical and mental acts required by the employment at a given time is an issue about which a lay person may provide competent evidence. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be asses by a medical expert”). The Veteran has indicated in a February 2013 SSA treatment record and March 2013 case analysis note that being around people is difficult for him and causes panic attacks given his PTSD. Furthermore, three different PTSD Disability Questionnaires or examination reports (August 2012, April 2013, and August 2016) indicated that Veteran’s PTSD symptoms cause clinically significant distress or impairment in social and occupational settings. Moreover, while April 2013 VA examiner indicated that the Veteran’s PTSD did not preclude him from working in solitary jobs, medical examiners are only responsible for providing a full description of the effects of disability upon a veteran’s ordinary activity. See 38 C.F.R. 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In addition, the Veteran has suffered from alcohol dependency, but the April 2013 PTSD VA examination report differentiates between the Veteran’s PTSD and the alcohol dependency and indicates that the Veteran’s nightmares, flashbacks, hyperstartle response, irritability, suspiciousness, and poor sleep are due to his PTSD. These are symptoms that significantly affect the Veteran’s employability. For the foregoing reasons, the Veteran’s PTSD and ankle disabilities prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. Entitlement to a TDIU is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lopez, Law Clerk