Citation Nr: 18159009 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 11-00 314A DATE: December 19, 2018 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities are severe enough to render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to December 1978. In a June 2017 correspondence and subsequent Board hearing on the issue of an increased rating for scarring, the Veteran raised the matter of entitlement to a TDIU. In an October 2017 decision, the Board found that the issue of entitlement to a TDIU was properly raised and remanded the claim to allow the regional office to evaluate the issue. The claim was denied in an October 2018 supplemental statement of the case and is now ready for adjudication by the Board. 1. Entitlement to a TDIU The Veteran asserts that his multiple service-connected disabilities make him unable to find or maintain employment. Specifically, he cites his psychiatric and musculoskeletal disorders as the primary inhibitors of employment. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. This is so provided the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In a June 2017 TDIU application, the Veteran stated that he last worked full-time on June 16, 2016, which is also the date he asserts that he became too disabled to work. Although the Veteran’s representative in a different document asserted that July 16, 2016, is the date of the Veteran’s last date of employment, this date seems to have been a mistake in light of the TDIU application and the award of benefits by the Social Security Administration (SSA). After a review of the evidence, the Board finds that a TDIU is warranted. Initially, the Board notes that the Veteran’s service-connected disabilities include a psychiatric disorder (70 percent), tinnitus (10 percent), a laceration scar (10 percent), posttraumatic sensory alterations (10 percent), a distal tuft fracture of the toe (10 percent), a traumatic brain injury with post-concussive disorder (10 percent), and peripheral neuropathy of the left lower extremity affecting the sciatic nerve branch (10 percent) and the femoral nerve branch (10 percent). He also receives noncompensable ratings for hemorrhoids and peripheral neuropathy of the left lower extremity associated with a laceration scar. Notably, the Veteran suffers from degenerative disc disease of the back and type 2 diabetes mellitus, among other disorders, which cannot be considered as neither is service-connected. As the Veteran’s psychiatric disorder is rated at 70 percent and his ratings combine to 90 percent, the Board concludes that the schedular criteria for a TDIU have been met. Additionally, the Board finds that the combined effects of the Veteran’s disabilities render him unable to obtain or maintain substantially gainful employment. The Veteran previously worked as a janitor before he stopped working in 2016. He described his job as maintaining two buildings through the performance of janitorial and maintenance duties. He reported that he took such actions as collecting the trash, mopping floor, changing light bulbs, and climbing the roof and attic to monitor heating and cooling systems. He stated that he stood for the majority of the day and that his job required extensive stooping as well as the handling of large objects. The Board finds that such intensive physical work would be greatly inhibited by his service-connected peripheral neuropathy. On multiple occasions, he has complained about how his leg gives way without any warning when walking. For example, during an October 2017 peripheral nerves examination, he reported numbness, stabbing, and tingling in his left leg. He described increased pain when walking more than a half mile or standing for more than 15 minutes. As a result, he relied on a cane for ambulation. However, his janitorial job requires extensive walking and standing. His use of a cane and his leg giving out would undoubtedly prohibit from performing his required duties. Moreover, completing tasks such as climbing the roof and attic, which he says his doctor advised against, could potentially be life-threatening if he fell as a result of his leg giving out. The Board also concludes that other positions, including sedentary work, would not be suitable for the Veteran. Although he earned a GED, there are no indications that he has any education beyond his GED. Even if he did have other skills, he worked as a janitor from 2004 to 2016, which makes entering into a sedentary profession at this point in time unlikely. Regardless of whether he was performing sedentary work or physically-demanding work, his psychiatric disorder would greatly inhibit his ability to work. He has been diagnosed and service-connected for posttraumatic stress disorder (PTSD), an unspecified depressive disorder, a generalized anxiety disorder with mild neurocognitive disorder, and a substance abuse disorder in remission. Testimony during his Board hearing described how the Veteran worked alone because he cannot be around others. During a February 2014 PTSD examination, the Veteran was found to have difficulty adapting to stressful circumstances, establishing and maintaining relationships, impaired judgment, panic attacks, and suspiciousness, among other symptoms. These symptoms would make any employment difficult. The Veteran’s psychiatric disorder is compounded by the residuals of a traumatic brain injury (TBI). During a VA TBI examination, the Veteran was determined to have moderately impaired judgment, inappropriate social interaction most or all of the time, and reported memory problems. He also suffered from headaches and hypersensitivity to light. The Board notes that the Veteran’s symptomatology would almost certainly make it impossible to hold a position that required interaction with others, a component that most jobs require. It is unclear what substantially gainful employment the Veteran could obtain and maintain.   As the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities, the Board concludes that a TDIU is warranted. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Borman, Associate Counsel