Citation Nr: 18159342 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 14-10 969 DATE: December 19, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT The combined effects of the Veteran’s service-connected posttraumatic stress disorder (PTSD) precludes substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §1155 (2012); 38 C.F.R. §§3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from June 15, 1977 to June 30, 1977. This matter before the Board of Veterans’ Appeals (Board) is on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a videoconference hearing before the undersigned in July 2018. A transcript of the proceeding is of record. 1. Entitlement to TDIU For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §3.340. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In the case at hand, the Veteran is presently service-connected for PTSD, rated as 70 percent disabling. As this service-connected disability is rated 60 percent or more, the Veteran meets the schedular requirement for eligibility for TDIU. The record reflects that the Veteran’s highest level of education is four years of high school. He indicated he last worked full time in February 2006, the date when he allegedly became too disabled to work. He worked for the same company for ten years as a truck driver; the most he ever earned in one year was $30,000. The Veteran testified that since he got out of service, he has had over 50 different jobs. The Veteran testified at his July 2018 hearing that his service-connected PTSD prevents him from maintaining employment. He contends that he is unable to get along with other people and has trouble interacting with others to the point where he has lost friends. He also claims that as a result of the psychological issues he has, he would “go crazy” and experience anxiety trying to work in an office setting. In May 2016, a VA examination was performed in connection to the Veteran’s service-connected PTSD. The examiner indicated at that time, he had “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” Additionally, in September 2018, an opinion was provided and associated with the record pertaining to the Veteran’s employability. The examiner thoroughly documented the Veteran’s occupational and personal history and performed an in-person examination. During her assessment, the Veteran seemed angry and irritated at times, with an anxious affect. His thoughts were scattered and he was unable to follow along in a conversation for very long. His immediate memory was significantly impaired, which he explained contributes to his inability to complete tasks in a timely manner. The examiner provided that the Veteran has total occupational and social impairment due to such symptoms as gross impairment in thought processes, together with persistent hallucinations and grossly inappropriate behavior, plus he has intermittent inability to perform activities of daily living and he also has memory loss. She opined that based on the Veteran’s PTSD symptoms, he is considered unable to adapt to the changes and demands of the workplace. Furthermore, it is “highly unlikely” that he can complete a normal workday and workweek without interruption from psychological symptoms nor maintain behaviors appropriate to the workplace. She concluded that based on his symptoms, he is “clearly unemployable.” Considering the entire record in light of the above, and in light of the combined effects of his service-connected PTSD, including his social and occupational impairment, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports the assignment of TDIU due to service-connected PTSD. Therefore, the Veteran’s claim is granted T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel