Citation Nr: 18125885 Decision Date: 08/13/18 Archive Date: 08/13/18 DOCKET NO. 15-24 279 DATE: August 13, 2018 ORDER Entitlement TDIU is granted from December 1, 2011. FINDING OF FACT The Veteran’s service-connected PTSD renders him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met since October 28, 2009. 38 U.S.C. §§ 1155, 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 February 1970 to October 1971. He testified before the undersigned Veterans Law Judge during an June 2017 hearing. This matter is on appeal from an August 2012 rating decision. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Disabilities arising from a common etiology will be considered as one disability for purposes of a TDIU under 38 C.F.R. § 4.16 (a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). For the reasons discussed below, the Board finds that the Veteran is entitled to TDIU. In this case the Veteran has met schedular requirement for TDIU for the entire time that he has been service connected. The Veteran is also unable to secure and maintain substantially gainful employment due to his service connected disability, specifically his PTSD. The Veteran is currently 70 percent service-connected for PTSD, 10 percent for tinnitus and prostate cancer residuals and 0 percent for erectile dysfunction and bilateral hearing loss. The Veteran has been 10 percent service connected for tinnitus and at least 50 percent service connected for PTSD for the entire time. The Veteran’s PTSD and tinnitus both result from his combat during military service. See February 2011 rating decision. For purposes of 38 C.F.R. § 4.16, they are considered one disability rated as 60 percent disabling. Thus, the Veteran has met the schedular requirement of TDIU the entire time that he has been service connected. The Veteran filed his TDIU claim November 11, 2011. The Veteran was previously employed as a teacher, but he reported that he has been unable to work as a teacher since November 2009 due to his service connected PTSD. The Veteran has continuously asserted that his PTSD renders him unable to work and that his anger problems caused him to be removed from his teaching position. See September 2012, June 2014, and June 2015 correspondence. He also asserts that his employment was protected by the Teacher’s Union and that’s why he was able to teach as long as he did. See August 2012 NOD. Notably, there are also numerous buddy statements offering insight as to how the Veteran’s PTSD has impacted his ability to work. In June 2014, the Veteran’s sister, ex-wife, and girlfriend all provided statements in support for his claim. The statements all corroborate the Veteran’s claims that his PTSD symptoms interfered with his ability to work, specifically that he was unable to handle adult conflicts and has problems with authority. The Board also acknowledges an August 2011 letter from a private psychologist which indicates that the Veteran’s teaching career ended due his inability to manage his anger and that his sense of estrangement has severely impaired his ability to socialize or establish relationships. See medical treatment record nongovernment facility received in August 2011. Also, a June 2015 letter from a VA psychiatrist states that the Veteran is currently 70 percent service connected for PTSD and has not worked as teacher since 2010. See medical treatment record government facility received in June 2015. The letter further states that the Veteran continues to have difficulties with “concentration, focus, ability to tolerate stress and frustration and he could not work in a competitive work environment…these deficits are more likely than not attributable to PTSD.” Id. Additionally, the claims file shows that the Veteran has worked as a bus driver and a substitute teacher and contains tax return documents from 2008 thru 2016. See June 2017 Income Tax Statements. Despite his work driving buses and substitute teaching, his income tax forms show that his income was below the poverty threshold for a household according to the U.S. Department of Commerce. Therefore, although the Veteran has been working at times since 2009, it appears that the work has been marginal employment. Thus, the record shows that the Veteran’s service-connected PTSD causes the Veteran to be unemployable and only able to have marginal employment. The Board acknowledges that the Veteran has a Master’s degree, however his PTSD limits his employment opportunity to such an extent, they are considered nonexistent. Although the Veteran has a Master’s degree and has worked as a teacher he cannot perform well in a competitive environment. The record shows that the Veteran PTSD symptoms also limits him from working in other job areas including customer service, manual labor, and public service. As indicated above he cannot function well in a competitive work environment due to the stress and anger associated with his PTSD, nor is he capable of reporting to an authoritative figure. Based on all evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was precluded from securing and following substantially gainful employment due the effects of his service-connected PTSD. Therefore, the Board concludes that a TDIU rating is warranted. (Continued on the next page)   As such, a TDIU is warranted as of October 28, 2009, the date as of which the Veteran meets the criteria under 38 C.F.R. §4.16(a), and when his unemployability is factually ascertainable. The Veteran’s testimony, medical records, and tax information show that he was unable to secure and maintain substantially gainful employment from this date. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Davis, Associate Counsel