Citation Nr: 18161046 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-59 252 DATE: December 28, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran’s service-connected disabilities is granted. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to an effective date prior to December 15, 2016 for a 50 percent evaluation for PTSD is dismissed. FINDINGS OF FACT 1. It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. 2. The Veteran has clearly expressed his intent to withdraw all claims on appeal before the Board if entitlement to TDIU is granted. See November 2016 VA Form 9; July 2018 statement. CONCLUSIONS OF LAW 1. The criteria for assignment of TDIU due to the Veteran’s service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 2. As the benefit sought on appeal has been granted in full, there remains no question of law or fact involving the claim for an evaluation in excess of 50 percent for PTSD and the appeal is dismissed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.202. 3. As the benefit sought on appeal has been granted in full, there remains no question of law or fact involving the claim for entitlement to an effective date prior to December 15, 2016 for a 50 percent evaluation for PTSD and the appeal is dismissed. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1967 to August 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and March 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to TDIU due to the Veteran’s service-connected disabilities The Veteran contends that he is entitled to TDIU as he is unable to work due to his service-connected ischemic heart disease and PTSD. He last worked full time in June 2012 at the Department of Housing and Urban Development as a Management Analyst. He reported he has education through year two of high school. He stated that he left his last position due to his disability and that he was no longer able to walk long distances without shortness of breath and he must sit and rest for a long period of time every 50 to 100 feet. See July 2012 Veterans Application for Increased Compensation Based on Unemployability; July 2018 statement; August 2018 VA Form 9; April 2013 request for employment information. The Veteran contends that his PTSD causes anxiety and depression, both of which restrict his activities to the point where is he unable to participate in any significant activities or relationships, he cannot be in places with even small groups of people, and at times, he is unable to leave the home. Further, he contends that his anxiety at times causes him to engage in high-risk behavior without a care about his health or safety. See November 2016 VA Form 9; Scott v. McDonald,789 F.3d 1375 (Fed. Cir. 2015). A. Applicable Law To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 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). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). B. Discussion Here, the Veteran’s service-connected disabilities include status post coronary artery rated 60 percent disabling; PTSD rated 30 percent disabling since August 26, 2010 and 50 percent disabling since December 15, 2016; peripheral vascular disease of the right lower extremity rated 20 percent disabling; peripheral vascular disease of the left lower extremity rated 20 percent disabling; diabetes mellitus rated 20 percent disabling; neuropathy of the right lower extremity rated 10 percent disabling; neuropathy of the left lower extremity rated 10 percent disabling; and bilateral cataracts, nephropathy, erectile dysfunction, and status post left hand trauma and strain with scar rated noncompensable. Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). The January 2017 VA PTSD examiner determined that the Veteran would only be able to complete simple tasks in a loosely supervised environment, where he could control the pace and workflow. She stated that the Veteran would be expected to have reduced efficiency in tasks due to his impaired short-term memory and motivation and that his significant irritability would require limited contact with the public or groups of coworkers. She also noted that he would be expected to have significant challenges in settings which are customer-facing, or in which he must deal with a manager who maintains close control. She concluded that these symptoms dictate that he would need flexibility in his work schedule to accommodate for missed time related to lack of sleep, anger exacerbations, and impaired motivation. In a February 2017, the Veteran’s private psychotherapist determined, given the severity, intensity, and duration of the Veteran’s psychological symptoms and coping mechanisms, he will be persistently challenged to be in the workforce with the skills that bring about healthy interaction with others. Resolving all reasonable doubt in the Veteran’s favor as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board finds that the combination of the Veteran’s service-connected disabilities, to include his PTSD symptoms and the physical symptoms he describes due to his heart condition, prevent him from securing or following substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. 2. Entitlement to an evaluation in excess of 50 percent for PTSD and entitlement to an effective date prior to December 15, 2016 for a 50 percent evaluation for PTSD The Veteran contends that a grant of entitlement to TDIU would satisfy his appeal as to all claims on appeal before the Board. See November 2016 VA Form 9; July 2018 statement. As entitlement to TDIU is granted, the Board finds that this represents a complete grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Under 38 U.S.C. § 7105(d)(5), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. As the Veteran clearly expressed that entitlement to TDIU satisfies his appeal as to all claims; the Veteran’s appeal as to the issues of entitlement to an evaluation in excess of 50 percent for PTSD and entitlement to an effective date prior to December 15, 2016 for a 50 percent rating for PTSD are rendered moot, and there is no case or controversy to be resolved. Therefore, the appeal as to these issues are dismissed. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel