Citation Nr: 20004334 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 16-61 828 DATE: January 17, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2004 to October 2008. In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. 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 or her service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.’ 38 C.F.R. § 4.16 (a) (2017). The Veteran filed an express claim for a TDIU on September 16, 2015. The Veteran is assigned a 70 percent disability rating for his posttraumatic stress disorder (PTSD); a 20 percent disability rating for his low back strain; a 10 percent rating for his cervical strain; a 10 percent rating for his right ankle strain; a 10 percent disability rating for his tinnitus; a 10 percent disability rating for his eczema; a 10 percent rating for headaches; and noncompensable ratings for chondromalacia patella of the right knee and sebaceous cyst. The Veteran has a total combined disability rating of 90 percent. The Veteran therefore meets the schedular criteria for a TDIU as of the date of claim. See 38 C.F.R. § 4.16 (a). Thus, the remaining issue is whether the evidence supports that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. VA’s General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). 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 sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. 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). Based on the evidence of record, the Board finds that the Veteran’s service-connected PTSD renders him unable to obtain or sustain substantially gainful employment. Specifically, the Board notes that the July 2016 private evaluation report reflects that the psychologist found the Veteran’s history and examination findings supported the contention that the Veteran’s service-connected PTSD renders him unemployable; the private doctor found that the Veteran’s symptoms indicate he is unable to perform the material duties of his regular occupation on a competitive basis. Additionally, the Board observes that VA and private treatment records indicate that the Veteran was unable to obtain and maintain employment due to his PTSD. Given the overall picture of the Veteran’s physical and mental limitations, the Board finds that he is not capable of obtaining or maintaining substantial gainful employment. Accordingly, TDIU is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.