Citation Nr: 18161065 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-13 500 DATE: December 28, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU). is granted. FINDING OF FACT After affording the Veteran the benefit of the doubt, the evidence indicates that the Veteran is unemployable due to his service-connected disabilities CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 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 May 1970 to January 1972. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran claims that the combined effect of his service connected disabilities prevent him from securing and following substantially gainful employment. Specifically, because of his service-connected disabilities, the Veteran cannot stand or stand for long periods, nor is he capable of the mental focus required to retain substantially gainful employment. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; 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. Id. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Veteran is service-connected for eight conditions. The Veteran is currently service connected for PTSD at 50 percent (a rating assigned effective in 2007), a left clavicle fracture at 20 percent, lumbar spine DJD at 20 percent, bilateral hearing loss at 20 percent, diabetes at 20 percent, tinnitus at 10 percent, and peripheral neuropathy of the right and left legs at 10 percent each. The Veteran’s total disability rating is currently 80 percent from November 3, 2011, and 90 percent from January 18, 2012. Therefore, the schedular requirements under 38 C.F.R. § 4.16(a) have been met. Affording the Veteran the benefit of the doubt, the Board concludes that TDIU is warranted based on the evidence of record, as it does not appear that the Veteran is able to secure or follow a substantially gainful occupation despite his service-connected disabilities. See 38 C.F.R. § 4.16(a). The evidence of record documents serious symptoms that would make it impossible to secure or maintain any type of substantially gainful employment. The record affirms that the Veteran suffers from orthopedic impairments and decreased concentration. Specifically, according to the Veteran’s May 2013 examination, the veteran suffers from back pain which is alleviated by movement or rest. Thus, it appears that he cannot sit or stand long enough to complete most tasks. Indeed, after retiring from his position in gunstock design due to physical and mental limitations, the Veteran became a farmer. However, according to credible testimony from the Veteran dated February 2015, the Veteran cannot do much of the work on his ten-acre farm because of his service-connected low back condition. Moreover, according to the Veteran’s May 2013 examiner, the Veteran’s concentration has deteriorated to the point where he is unable to keep his mind focused on employment-related tasks. Despite the Veteran’s symptoms, the evidence of record shows that the Veteran has had a long history of employment since separation; specifically, he has worked in firearm design. Again, however, he can no longer perform this work due to physical limitations involved in carrying firearms distances of about fifty feet. The evidence, including lay statements and a May 2013 examination, also shows that the Veteran is capable of some potentially income-producing activities such as some yard work and driving; it does not appear that these abilities could produce more than marginal employment. The Veteran’s current self-employment as a farmer does not necessarily preclude an award of TDIU unless the employment is not considered “substantially gainful employment.” See id. There is no regulatory definition of “substantially gainful employment.” However, 38 C.F.R. § 4.16(a) instructs that “[m]arginal employment shall not be considered gainful employment.” “Marginal employment” exists when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Here, the Veteran has not submitted specific information detailing his income from his farm. However, the Veteran’s representative argues that his income is marginal. Even if the Veteran’s ten-acre farm produces enough income to provide a more than marginal standard of living, the evidence indicates that the Veteran is not capable of performing most of the work on his farm. His wife does most of the physical and non-physical work, including mowing and tending to their fourteen chickens. Affording the Veteran the benefit of the doubt, the Board finds that his self-employment as a farmer constitutes no more than marginal employment, and does not preclude an award of a TDIU. In sum, the Board finds that after affording the Veteran the benefit of the doubt, the Veteran is unable to secure and follow substantially gainful employment due to service-connected disabilities, and an a TDIU rating is warranted. 38 U.S.C. § 5107(b). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel