Citation Nr: 19130862 Decision Date: 04/19/19 Archive Date: 04/19/19 DOCKET NO. 17-48 023 DATE: April 19, 2019 ORDER A total disability rating based on individual unemployability (TDIU) is granted effective August 18, 2015.   FINDING OF FACT The Veteran’s service-connected PTSD and tinnitus preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Effective August 18, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to May 1970. The case is on appeal from a November 2015 rating decision. A TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, No. 17-0781, 2019 U.S. App. Vet. Claims LEXIS 386, at *26-27 (Vet. App. Mar. 14, 2019) (citing 20 C.F.R. § 404.1567). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Analysis First, as to the procedural background, the claim on appeal was received on August 18, 2015. Notably, the Board previously addressed a PTSD rating claim in a January 2014 decision. In granting a higher rating to 50 percent for PTSD, the Board also determined that there was no pending TDIU claim at that time. The January 2014 decision is final and it was not appealed to a higher court. See 38 C.F.R. § 20.1100. Thus, the appeal arises from the August 2015 claim. In his August 2015 TDIU application, the Veteran contends his service-connected PTSD and tinnitus prevent him from securing or following any substantially gainful occupation. He has a high school education and reported that he became too disabled to work in May 2009. His most recent occupation was listed as business manager. The Veteran submitted an August 2015 statement in which he reported worsening psychiatric symptoms, including becoming more irritable, frustrated and temperamental, as well as difficulty remembering time, places and dates. He stated he has strained relationships with former co-workers, family and friends. Similarly, an August 2015 statement was submitted from his former co-worker D.W. He indicated the Veteran stopped working in May 2009 due to increased stress, irritability and agitation in dealing with colleagues. He noted the Veteran was becoming more vigilant and confrontational, and thought it would be best if he retired at that time. A September 2015 VA examiner indicated the Veteran suffers from symptoms from his PTSD of depression, anxiety, suspiciousness, chronic sleep impairment and mild memory loss, as well as difficulty in adapting to stressful circumstances, including work or a work-like setting. Private medical evidence was submitted in support of the Veteran’s claim for a TDIU. Dr. J.L. submitted August 2015 and March 2016 opinions. He opined the Veteran is unemployable and experiences severe symptoms, including gross impairment in thought processes or communication and an intermittent inability to perform activities of daily living. He stated the Veteran stopped working due to the severity of his PTSD. Thereafter, the Veteran was afforded a January 2017 VA examination in which the examiner noted the Veteran was previously employed in construction and then as an officer in the laborer’s union. He reported the Veteran was a superintendent and then the business manager, before retiring in 2009. The examiner stated he was trustee of pension funds but was unable to function effectively at that level. He indicated occupationally, the Veteran would require work with minimal human interactions and menial tasks that are repetitive and uncomplicated. He noted given the corporate responsibility in his prior employment, it would be challenging for the Veteran to do blue collar repetitive work. The Board finds that the Veteran’s service-connected PTSD and tinnitus preclude him from securing or following substantially gainful employment. This is so particularly when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This is so for the entire claim process, effective August 18, 2015. The Board notes that during the appeal period, the Veteran’s service-connected disabilities have included PTSD, evaluated as 50 percent and tinnitus, evaluated as 10 percent disabling. There are also noncompensable service-connected disabilities of left ear hearing loss, residuals of scars of the left forearm and hand, and residual scar of the right hand. The combined disability rating is 60 percent. See 38 C.F.R. § 4.25. The Board recognizes that the Veteran’s combined rating is 60 percent, which does not on its face show that the extraschedular criteria for a TDIU are met. However, for purposes of ascertaining whether the Veteran meets the schedular requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a), his PTSD and tinnitus are found to be “one disability,” particularly when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As noted, under 38 C.F.R. § 4.16(a)(4), “multiple injuries incurred in action” are considered “as one disability.” Here, the Veteran’s military personnel records show he was in combat during his service in Vietnam. The evidence suggests that his ratable disabilities, including PTSD and tinnitus, all resulted from combat action in Vietnam. Moreover, his PTSD and tinnitus are considered “multiple injuries incurred in action” under 38 C.F.R. § 4.16(a)(4) and are considered as “one disability” rated at 60 percent. Therefore, the Board concludes that threshold schedular requirements for consideration of TDIU under § 4.16(a) have been met. In sum, the Board finds entitlement to a TDIU is warranted in this case from August 18, 2015. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel