Citation Nr: 19118348 Decision Date: 03/14/19 Archive Date: 03/13/19 DOCKET NO. 15-22 108 DATE: March 14, 2019 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The evidence of record is in equipoise as to whether the Veteran’s service-connected PTSD renders him unable to obtain substantial gainful employment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1970 to August 1972. Entitlement to a TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2018). A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran seeks entitlement to TDIU on the basis of his service-connected disabilities. For the relevant period, the Veteran was service-connected for PTSD, rated at 70 percent disabling from November 29, 2012, and diabetes mellitus rated at 20 percent disabling from March 25, 2009. The Veteran has a combined disability evaluation of 80 percent from November 29, 2012; thus, the Veteran meets the basic percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16 (a). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran provided a completed TDIU application in April 2013. The application reflects that the Veteran has not worked since September 2008 and that he has a high school education. He did not have any additional education or training before or after he became too disabled to work. Other evidence shows that the Veteran’s work history included primarily work in law enforcement and security. At the outset, the Board notes that the Veteran received examinations for diabetes mellitus in November 2013 and July 2014 in which both examiners determined that the Veteran’s diabetes does not prevent the Veteran from working. The Board also notes that the Veteran receives special monthly compensation for erectile dysfunction; however, his November 2013 examination found that this disability does not have any functional impact on the Veteran’s employability. As there is no other evidence to the contrary, to include medical or lay evidence, the Board need not discuss these disabilities further. Therefore, the question at hand is whether the Veteran’s PTSD, standing alone, prevents the Veteran from obtaining substantial gainful employment. The evidence shows that the Veteran received a VA examination in April 2013 where the examiner found a GAF score of 55, noting that the Veteran has occupational and social impairment with an occasional decrease in work efficiency. The examiner also noted the Veteran has moderate problems with some depression and irritation, to include, symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, inability to establish and maintain effective relationships, and neglect of personal hygiene. As a result of this examination and noted symptomatology, the RO determined that the Veteran’s condition had worsened, and increased the Veteran’s rating from 30 percent to a 70 percent rating. Similarly, in his November 2013 examination for PTSD, the examiner found the same symptoms except the examiner did not find symptoms of flattened affect, sleep impairment, difficulty in understanding complex commands, or impaired impulse control. However, like the previous examiner, this examiner also found a GAF score of 55, with occupational and social impairment with an occasional decrease in work efficiency. It was also noted that the Veteran’s symptoms were getting worse with references to symptoms to include, “frustration, sits in a corner, paranoia increasing, vigilent [sic], and nothing for meds.” With regards to unemployability, the examiner noted that the Veteran has difficulty attending to, or is easily distracted from the task at hand; difficulty maintaining concentration and focus on work over a period of time, tends to skip to one task to another without completing the prior task; the Veteran has intrusive thoughts which interfere with the ability to stay focused on the task at hand; significant difficulty accepting supervision or receiving instructions without becoming angry; significant difficulty remembering instructions and details of work assignments; significant difficulty functioning around other people, difficulty as a team member, feels uncomfortable around others; and the Veteran cannot tolerate being around other people in any setting for more than a few minutes. The examiner concluded that despite the Veteran’s mental health condition, the Veteran is employable. Contrary to the examiner’s opinion, the Board has considered the noted symptomatology above and finds that the symptoms noted by the examiner significantly questions the Veteran’s ability to maintain substantial gainful employment. The Board notes that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation, and marginal employment shall not be considered substantially gainful employment. See VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992); see also 38 C.F.R. § 4.16 (a) (2018). Therefore, while the Veteran may be “employable,” to the extent that the Veteran has the necessary skills and educational ability to obtain employment, the symptoms noted by the examiner adds doubt as to whether the Veteran is able to maintain and/or sustain substantial gainful employment. The Board has also considered statements from the Veteran’s spouse where she reported during the Veteran’s March 2014 mental health visit that the Veteran has symptoms of isolation, hypervigilance, quick-temper, withdrawal, and rigidness. She further reported that he is detached from their fourteen-year-old child, and that the Veteran rarely ventures from home, but rather, spends hours on the computer perusing websites which focus on gun rights and government takeover. Based on the above, the Board finds that the evidence is in equipoise as to whether the Veteran’s service-connected PTSD renders him unable to obtain or sustain substantially gainful employment. While the Board respects the November 2013 examiner’s conclusion, the Board finds that the symptoms noted by the examiner are not so obvious to warrant a finding of employability. Moreover, given that the examiner did not provide any rationale to support his conclusion, the Board finds that his conclusion of “employable” alone is not enough to outweigh the plausibility that the symptoms noted by the examiner may preclude the Veteran from obtaining substantial gainful employment. The Board also recognizes that the Veteran has been deemed disabled and receives Social Security Administration (SSA) benefits, and while SSA benefits are considered in TDIU decisions, they are not determinative. Nevertheless, in the Veteran’s case, this evidence has no bearing on the issue at hand as the Veteran reported impairments due to his back and hip pain, shoulder problems, and diabetes, and there were no treatment records pertaining to his psychiatric disorder that would warrant consideration by the Board. Therefore, these records are inapplicable. (Continued on the next page)   Given that the evidence is in equipoise, the Board resolves reasonable doubt in favor of the Veteran. Accordingly, a TDIU is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel