Citation Nr: 21000183 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 19-30 605 DATE: January 4, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the impairment caused by the Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2007 to July 2007 and December 2009 to April 2011, with additional service in the National Guard. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The October 2019 VA Form 9 limited the scope of the appeal to the issue in the August 2019 statement of the case (SOC), TDIU. See 10/15/2019, Form 9; 08/16/2019, SOC. In October 2020, the Veteran testified at a Board videoconference hearing. The transcript of the hearing has been associated with the record. A review of the record, and after resolving all reasonable doubt in favor of the Veteran, demonstrates that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. VA may grant a total disability rating where the schedular rating is less than 100 percent, and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. The Veteran’s service-connected disabilities include posttraumatic stress disorder (PTSD) (70 percent from April 25, 2012; 100 percent from July 11, 2016; 70 percent from November 1, 2016; 100 percent from August 26, 2019; and 70 percent from November 1, 2019—the 100 percent ratings were due to hospitalizations), residuals of a left clavicle fracture (10 percent from April 25, 2012, and 20 percent from March 8, 2016), residuals of a left ankle fracture (10 percent from April 25, 2012), tinnitus (10 percent from May 10, 2017), dry eye condition (non-compensable), and a left shoulder scar (non-compensable). The combined evaluation is 80 percent as of April 25, 2012, with the exception of the 100 percent ratings noted above. Thus, the schedular threshold requirement for TDIU is met as of April 25, 2012. See 38 C.F.R. §§ 4.16(a), 4.25. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Board must, therefore, evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. Marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). An individual’s particular circumstance is the basis for entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). After resolving all reasonable doubt in favor of the Veteran, a review of the record demonstrates the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. The record demonstrates that the Veteran completed high school and a heating and air conditioning certificate program, and he worked as a mechanic for two years until 2015, at which time he contends he became too disabled to work due to psychiatric decompensation. 02/05/2020, C&P Exam; 09/24/2015, C&P Exam. The record also demonstrates the Veteran has undergone periods of temporary convalescence due to severe PTSD symptoms. A January 2013 VA examiner noted the Veteran has tried working at least three jobs but has gotten fired for his anger issues and problems working with other people, and he has not had a job in 8 to 9 months. The examiner found the Veteran had occupational and social impairment with reduced reliability and productivity. 01/03/2013, VA Examination. The record demonstrates that the Veteran last worked as an automotive mechanic on September 30, 2015. 08/05/2016, VA 21-4192. Three VA examiners have examined the Veteran five times between October 2015 and February 2020, and all have found the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. See 02/05/2020, C&P Exam; 04/16/2018, C&P Exam; 10/24/2017, C&P Exam; 07/01/2016, C&P Exam; 10/12/2015, C&P Exam. A November 2016 private examination indicates the Veteran’s PTSD is the reason he had to stop working. 11/29/2016, VA Examination. The November 2016 private psychologist opined that the Veteran is not capable of sustaining substantial, gainful work activity due to the severity of his PTSD symptoms, which result in difficulty concentrating, getting along with others, daytime fatigue, irritability, and serious deficiencies in most areas of his life. Id. The Social Security Administration (SSA) found the Veteran became disabled as of December 29, 2015, mostly due to his PTSD. 11/01/2019, Medical Treatment Records - Furnished by SSA. Considering the above, the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure and maintain gainful employment. Specifically, the Veteran’s service-connected disabilities are found to cause an inability to perform occupational tasks on a regular basis. When taken in conjunction with the Veteran’s educational background and occupational history, it precludes gainful employment. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.