Citation Nr: 19190877 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 19-08 059 DATE: December 3, 2019 ORDER Entitlement to a total disability rating based on unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT For the entire rating period, the Veteran’s service-connected disabilities prevented him from obtaining and maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107; 38 (2018); C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to November 1971. This matter comes before the Board of Veteran’s Appeals (Board) from a December 2015 rating decision of the Department of Veteran’s Affairs (VA) Columbia, South Carolina Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2019. A transcript of the hearing is of record. Entitlement to a total disability rating based on unemployability (TDIU) due to service-connected disabilities is granted. A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16 (a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran’s ability or inability to engage in substantially gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran’s earned 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. Marginal employment may also be held to exist, on a 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). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. § § 3.341, 4.19. In reaching a decision, it is necessary that the record reflect some factor which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. § § 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran receives VA compensation for post-traumatic stress disorder (PTSD) at 70 percent, tinnitus at 10 percent, and diabetes at 10 percent giving a combined total rating of 80 percent. See 38 C.F.R. § 4.25. Thus, the Veteran meets the criteria for entitlement to a TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). In addition to meeting the schedular criteria, there is evidence that the Veteran’s service-connected PTSD and diabetes make it difficult for him to maintain substantial employment. The evidence relevant to the Veteran’s unemployability begins with medical reports from the VA examiners. In September 2015, a VA examiner provided a memorandum stating that after a review of the Veteran’s medical history and current medical examinations, it was at least as likely as not that the Veteran’s PTSD and diabetes render him unable to obtain and follow gainful employment of any sort, physical or sedentary. See Third Party Correspondence September 2015. In November 2015, the Veteran received an examination related to his PTSD. The examiner opined that if the Veteran attempted to return to the work place, his PTSD symptomatology would interfere with his ability to work effectively. The examiner continued further by stating that PTSD symptoms such as intrusive combat memories, exaggerated startled reactions to external stimuli, and hypervigilance for danger would disrupt the Veteran’s ability to maintain concentration and attention to task and to work well with others. Similarly, his low tolerance and irritability would interfere with work demands and would also make it difficult to work well with others. His long-standing social withdrawal and discomfort interacting with others would hinder his ability to work as a team member. See C&P Exam November 2015. The Veteran testified at a July 2019 hearing that because of his diabetes, he has low energy, and issues with both of his legs. The Veteran cannot walk long distances and requires a personal scooter for transportation due to shortness of breath. See Hearing Transcript July 2019. The Veteran also stated that his PTSD affects his ability to work. The Veteran’s PTSD is currently rated at 70 percent, which shows occupational and social impairment with deficiencies in most areas, such as work. 38 C.F.R. § 4.130; Diagnostic Code 9411. The Veteran stated that his PTSD causes him to lose his temper. He also stated that he can become outraged at the slightest thing, such as dropping a pencil. Id. The Veteran’s wife also testified to the Veteran’s lack of energy. She stated that the Veteran only has enough energy to sit on the porch and play with his dog and cat. She also testified that the Veteran has issues walking because of the swelling in his legs. Id. Based on the above analysis, the competent, credible, and probative evidence of record demonstrates that the Veteran’s service-connected disabilities render him unable to secure or follow substantial gainful employment. Therefore, entitlement to a TDIU is granted. 38 C.F.R. § 4.16 (2018). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.