Citation Nr: A19001588 Decision Date: 09/26/19 Archive Date: 09/26/19 DOCKET NO. 181207-1409 DATE: September 26, 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’s service-connected disabilities as likely as not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the initial rating decision on appeal was issued in February 2016. In August 2018, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran served on active duty from August 1967 to August 1969. He served in Vietnam and received both the Purple Heart Medal and the Combat Infantryman Badge. In August 2015, the Veteran filed a formal claim for TDIU. His claim was denied in the February 2016 rating decision. In the same month, the Veteran filed a timely notice of disagreement. The denial of his claim was continued in the April 2017 statement of the case. Subsequent to this statement of the case, the Veteran selected the Higher-Level Review lane, without submission of additional evidence, when he opted in to the Appeals Modernization Act (AMA) review system by submitting a RAMP Opt-in Election form. Under the Higher-Level Review lane, the RO denied his claim in a November 2018 rating decision, based on the evidence of record as of August 2, 2018, the date of election of the Higher-Level Review Lane. In this decision, therefore, the evidence of record as of August 2, 2018 is reviewed. 84 Fed. Reg. 138, 155 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.301). Entitlement to TDIU is granted. VA will grant TDIU when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes 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 service-connected 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Neither the veteran’s nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The medical evidence addressing the functional effects of a veteran’s disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran has reportedly been unemployed since 2006. His compensable service-connected disabilities are posttraumatic stress disorder (PTSD) (50 %); residuals of gunshot wound, left forearm with fracture of radius, muscle group VII and VIII and peripheral neuropathy (40%); disfiguring scars, severe, on face and head (30%); residuals from laceration, left radial artery (20%); residuals from fracture of femur, right with laceration, right knee (20%), with combined rating of 90 %. Thus, he meets the percentage requirements for TDIU on a schedular basis under 38 C.F.R. § 4.16 (a). The Veteran stayed in school through eighth grade. He reports that he had no further education or job training since then. He worked as a welder for over 18 years until he became unemployed in 2006. He has been receiving the Social Security benefits for his non service-connected back disability since 2005; the award was based on the finding that his back disability rendered him unable to work as a welder due to 6 hour stand/walk requirement. A January 2012 VA examination reports that due to service-connected right hip and right knee disabilities, he was unable to stand to shoot at a shooting range more than 20 minutes due to hip pain. He reported that his knee swelled and hurt worse the next day. He also reported that he could use stairs at home when necessary with holding rail and if he was not carrying items with both hands. His right knee would give out once in a while causing a fall on stairs. Regular use of cane and occasional use of walker were noted. He further reported that the right hip pain would become worse after sitting in any chair or position for more than one hour, requiring him to get up and move about; in comparison, the knee pain was mild while sitting but then also hurt worse when standing. The Veteran reported while he was working, he had some knee pain daily and for the last couple of years, pain had become worse and constant. He would fall due to giving way of his knee. When that happened, he had weakness with more sharp pain, sensation of patella dislocation or marked swelling. His knee would hurt worse and sometimes feel weak when standing up from a chair. Due to his service-connected neuropathy, he had decreased strength in the left handgrip, especially thumb and index, and the decreased handgrip prevented wrapping to hold a coffee cup, lifting a full gallon of milk by its loop, turning of wrenches, or carrying an item with weight more than 20 pounds with both hands. As for his PTSD condition, a January 2012 VA examination reflects symptoms of depressed mood, anxiety, panic attacks, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control. The Veteran reported an incident, relatively recent at the time of examination, with a law enforcement officer due to his impaired impulse control. The Veteran underwent another VA examination in December 2015. Although less detailed description of symptomatology was given at this examination, the Veteran’s symptomatology at this examination seemed well managed and stable with medication and was largely unchanged for his right hip, right knee, neuropathy, and PTSD from the last 2012 examination. However, notably, the Veteran reported worsening of symptoms in that he couldn’t move his arm due to his left forearm disability and that during a flareup, his right knee would swell and he could not bend the knee. He reported that the flareup occurs three times a week, with each episode lasting for a day. As for his PTSD, the December 2015 examiner stated that the level of occupational impairment due to PTSD was largely unchanged from the previous exam in 2012 and the Veteran’s symptomatology was determined productive of occupational and social impairment with occasional decrease in work efficiency. Notable additional condition reported at this examination was that his depression became worse due to his physical disabilities and weakness. During the examination, the Veteran did not believe he was able to maintain employment primarily due to physical limitations. The Veteran submitted two letters from his primary care physician in support of his claim that due to his service-connected disabilities, in particular, right hip and knee disability and psychiatric disabilities, he is unable to work. See August 2015 Letter from Dr. B.; March 2016 Letter from Dr. B. Resolving reasonable doubt in favor of the Veteran, the Board finds that the impaired use of a hand and an arm and inability to sit or stand for a period of time, combined with his impaired impulse control and interpersonal difficulties would prevent him from securing or following employment in the field that the Veteran had been trained and worked for over 20 years in total. Therefore, the Board concludes that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to TDIU is therefore granted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.