Citation Nr: 21061863 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 19-29 045 DATE: October 5, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT It is reasonably shown that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1967 to June 1969. This matter is before the Board of Veterans' Appeals (Board) from an April 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing in September 2021 regarding the appeal before the Board. The hearing transcript is not yet of record; however, the Board is granting the claim and as such the Veteran is not prejudiced by adjudicating his claim prior to receipt of the hearing transcript. The Veteran seeks TDIU. He contends his service-connected disabilities render him unemployable. TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. If there is only one such disability, it shall be ratable at 60 percent or more, 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 disability or more. 38 C.F.R. § 4.16(a). Here, the Veteran is currently rated 70 percent for posttraumatic stress disorder (PTSD) with unspecified depressive disorder, 20 percent for stroke residuals of the right upper extremity, and 10 percent each for postoperative residuals of lung cancer, coronary artery disease and stroke residuals of the right lower extremity. As such, the Veteran meets the threshold criteria for TDIU under 38 C.F.R. § 4.16(a). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience, but not his age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). 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 (3) 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran reported in his December 2017 TDIU application he last worked full time in December 2010 as a code inspector for homes and commercial properties. His application shows he has four years of college education. He reported his employer was making manpower reductions and due to his declining health and lack of seniority he was "let go" from his job. He has not worked since that time; and related that his numerous medical conditions do not make it possible for him to hold any kind of job. Evidence of record in support of the Veteran's claim of individual unemployability include a September 2017 VA-contract PTSD examination report wherein the examining psychologist described the Veteran's level of occupational impairment to be with deficiencies in most areas such as work, judgment, thinking and/or mood. In a March 2018 addendum to the September 2017 VA-contract PTSD examination report, the psychologist noted the Veteran experiences significant difficulties moving around, walking, and taking care of his daily needs independently; he ambulates in a wheelchair. The psychologist further noted that the Veteran's concentration, focus and ability to complete tasks changed during the past two years. His active symptoms and limitations interfere with his ability to function independently at work. A November 2018 statement from the Veteran's board certified cardiologist, Dr. E.H., reveals the Veteran is unemployable. Dr. E.H. states that due to the Veteran's disabling stroke with residual neurological deficits, he is no longer able to work. In addition, the Veteran's private physician, Dr. L.T., related in a November 2018 statement that the Veteran is unable to work due to the side effects of a stroke. Dr. L.T. stated the Veteran is unable to sit or stand for any period of time. Moreover, a September 2019 VA-contract central nervous system and neuromuscular diseases examination report, notes the Veteran's central nervous system disorders impact his ability to work. The examiner described how the Veteran is unable to walk one block with his walker or operate a phone or computer due to decreased manual dexterity. On review, the Board finds the September 2017 PTSD examination report and the March 2018 addendum, November 2018 statements by Drs. E.H. and L.T. and the September 2019 VA-contract central nervous system and neuromuscular diseases examination report each provides probative evidence of the Veteran's inability to secure or follow substantial gainful employment. While the psychologist who authored the September 2017 PTSD examination report and March 2018 addendum did not totally excluded the Veteran's ability to secure some type of employment, the Board observes that the psychologist references the Veteran's difficulties with moving around, walking, and taking care of his daily needs independently, which correlates with symptoms described by Drs. E.H. and L.T. who determined the Veteran is unable to work. Considering the evidence as whole, and resolving all reasonable doubt in the Veteran's favor, his service-connected disabilities render him unable to secure or follow substantially gainful employment. TDIU is granted. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.