Citation Nr: 19144635 Decision Date: 06/10/19 Archive Date: 06/10/19 DOCKET NO. 16-42 862 DATE: June 10, 2019 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran has had a combined rating of at least 70 percent, with at least one disability rated at 40 percent or more for the entire period on appeal, and his service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1988 to December 1995 and May 1998 to October 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with this appeal, the Veteran and his son testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2019. The Veteran has reported that his service-connected disabilities have prevented him from securing or following any substantial gainful occupation. The Veteran’s combined rating has been at least 70 percent with a disability, or separate disabilities combinable to at least 40 percent for the entire period on appeal. Therefore, the Board finds that the Veteran has met the schedular criteria for assignment of a TDIU. In addition, the evidence of record reflects that the Veteran has been unable to secure and follow any substantially gainful employment due to his service-connected disabilities. In this regard, the Veteran reported a variable work history, to include as a government contractor and selling seafood at a farmer’s market. He indicated that he became too disabled to work in May 2014, at which time his service-connected disabilities prevented him from obtaining and maintaining any form of gainful employment consistent with his college education. Specifically, the Veteran stated that he was denied an application for admission to a master’s degree program due to his service-connected posttraumatic stress disorder (PTSD). He added that his service-connected PTSD made it difficult to interact with customers, fellow employees, and supervisors. Further, he reported that he was unable to maintain a job because his service-connected hip and back disabilities impacted his ability stand or sit for any length of time. The Veteran was afforded VA examinations for his service-connected PTSD and back disability in January 2013 and August 2013. The examiner noted that the Veteran had limitation in function due to back pain and recent back surgery. Additionally, the Veteran had reported that he quit one contract job in 2011 after experiencing a severe panic attack and another job in 2012 because he was unable to handle the stress. In July 2014, the Veteran’s former employer at the farmer’s market reported that the Veteran was terminated because of unsatisfactory behavior resulting from his service-connected PTSD. The Veteran was provided an additional VA examination for his service-connected sleep apnea in February 2015. The Veteran reported that he was less alert while driving and, at times, at work. The examiner concluded that while the Veteran’s sleep apnea may affect his ability to operate machinery, it would not necessarily affect other types of work. Additionally, in February 2015, a VA psychologist concluded that the Veteran’s PTSD could present functional impairments in high-stress jobs; jobs that require frequent interactions with customers, co-workers, or supervisors; or those that require the ability to sustain concentration and focus, but may be remedied with reasonable accommodations per federal guidelines. By contrast, a private clinical psychologist opined that the Veteran was unable to obtain and maintain employment, to include sedentary employment. By December 2018, a private physician found that the Veteran had left lower extremity radiculopathy prior to his third back surgery in 2018 which impacted his ability to work. In March 2019 and April 2019, the Veteran was provided VA examinations for his service-connected back, knee, hip, and shoulder disabilities. The examiners concluded that the Veteran’s disabilities impacted his ability to perform occupational tasks that required prolonged walking, running, squatting, bending, kneeling, lifting, carrying, reaching, and overhead work due to pain. Based on the subjective report of the Veteran and the objective findings in the VA examination reports and medical evidence of record, the Board finds that the Veteran’s service-connected disabilities significantly impact his ability to function in an occupational setting. In this regard, the Veteran’s service-connected back, knee, hip, and shoulder disabilities result in debilitating pain, which limited his ability to perform physical and sedentary tasks. The Veteran’s service-connected sleep apnea impacted his ability to be attentive. Additionally, the Veteran’s service-connected PTSD was productive of difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. Moreover, a private clinical psychologist opined that the Veteran’s service-connected PTSD prevented his ability to obtain or maintain sustainable employment. In light of the Veteran’s employment history and the functional limitations described above, the Board finds that he is unable to secure or follow a substantially gainful occupation in accordance with his industrial background and education level as a result of his service-connected disabilities. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel 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.