Citation Nr: 21063431 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-26 412 DATE: October 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence is in equipoise that the Veteran's service-connected posttraumatic stress disorder with major depression (PTSD) prevents her from securing and maintaining substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1981 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA). This case was remanded in February 2020 for further development. In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to TDIU. TDIU may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. The Veteran has two service-connected disabilities during the appeal period: PTSD, rated at 70 percent, and irritable bowel syndrome (IBS), rated at 10 percent. As a result, she meets the criteria to be considered for schedular TDIU. There is little, if any, evidence that the Veteran's IBS affects her ability to work. Thus, the threshold question before the Board is whether the Veteran's PTSD alone prevented her from securing and maintaining substantially gainful occupation. The appeal period for this matter begins in January 2016. Prior to the period of appeal, the Veteran worked as an engineering technician and project coordinator and she has an associate's degree. See January 2016 VA Form 21-8940; April 2016 VA examination. She quit her last full time job to obtain a bachelor's degree, but she was in a motor vehicle accident in November 2013, which aggravated her PTSD and other non-service-connected disabilities, such as her back. Since that time, she has only worked in a self-employment setting, working at home for a couple of hours a day. Id. As a result, the Board finds that she has not been employed in substantially gainful employment during the appeal period. While seeking VA vocational services prior to the appeal period and prior to her motor vehicle accident, the Veteran was noted to have transferable skills in administrative work and project coordination but reported that the stress of the construction industry severely aggravated her PTSD such that she suffered a severe panic attack that she thought was a stroke. Her accounting work skills would be considered old because she had not performed accounting work in a long time. Thus, she was in need of competitive skills for the labor market. The vocational counselor opined that the Veteran's transferable skills were in a career field that aggravated her PTSD, and her other general administrative skills were not to a degree that would allow her to move into career-oriented business jobs. See January 2013 vocational records. During an April 2016 VA examination, the examiner opined that the Veteran retained the cognitive, behavioral, and emotional capacity to engage in simple tasks in a loosely supervised environment. She would need to work in a non-public facing role where she could take frequent breaks. She might need to have external structure imposed so that she could stay on task and enhance motivation. There would need to be no other restrictions. In May 2016, the Social Security Administration (SSA) found that the Veteran was disabled since November 2016 due to her non-service-connected back disability and her service-connected psychological disability. The agency found that her reports of trouble focusing and remembering were credible. She had reported trouble focusing to make decisions, as well as feeling lethargic. She had a hard time committing to an activity. While she attended some classes after November 2013, she reported trouble concentrating and processing information. Her restriction would be to no more than simple and routine tasks due to her psychological condition. The SSA also discussed that a vocational expert testified at a hearing and supported the finding that the demands of the Veteran's past relevant sedentary work exceeded her residual functional capacity. During her February 2020 Board hearing, the Veteran testified that her mental capacity was never the same after her motor vehicle accident. She attempted to go to school and work full-time at the same time but could not do so. She believed that she did not have the capacity to maintain the performance level of an employer's demands and was too tired to work on projects. When she was anxious, she would get confused. The Veteran reported that she had an undiagnosed concussion as a result of the motor vehicle accident, but the April 2016 VA examiner found that the Veteran did not have a traumatic brain injury and that she retained the cognitive capacity to engage in simple tasks. There is no additional evidence that she has a traumatic brain injury. As a result, the Board finds that any psychological or cognitive deficits should be attributed to the Veteran's service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998). Although the April 2016 VA examiner opined that the Veteran was able to work with few restrictions, such evidence is in equipoise with the SSA determination discussing that light or sedentary work exceeded the demands of her residual functional capacity. Moreover, the evidence is in equipoise with the VA vocational counselor's opinion that the Veteran did not have the skills necessary to transfer to a new position and that her current skills were for an industry that aggravated her PTSD. Although the SSA determination did not discuss whether it was the Veteran's psychological or non-service-connected physical impairments that prevented her from sedentary work, the Board will resolve reasonable doubt in her favor, especially considering that light or sedentary work does not typically involve significant physical demandsleading to the inference that her PTSD played a significant role in the finding. Because the evidence is in equipoise that the Veteran's PTSD prevents her from securing and maintaining substantially gainful occupation, entitlement to TDIU is warranted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.