Citation Nr: 21063679 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-11 351A DATE: October 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected posttraumatic stress disorder and ischemic heart disease render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability are 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 served on active duty from August 1964 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). 1. Entitlement to a total disability rating based on individual unemployability A total disability rating may be granted 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. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). It should additionally be noted that 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). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran is service connected for posttraumatic stress disorder, rated as 70 percent disabling from July 13, 2010; and, ischemic heart disease, rated as 30 percent disabling from March 22, 2015. The Veteran's service-connected psychiatric disability is evaluated as 70 percent disabling. The schedular threshold requirement for TDIU is therefore met. See 38 C.F.R. § 4.16 (a). Based on a review of the record, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and probative evidence warrants a finding that the Veteran's service-connected disabilities render him unable to secure and maintain substantially gainful employment. The Veteran contends he is unable to secure and maintain substantially gainful employment due to his compulsive desire for solitude and anonymity. April 11, 2013, Statement in Support of Claim. Further, the Veteran asserts that he has difficulty working with high demands from employers, difficulty working with others, and difficulty following commands. February 12, 2015, Notice of Disagreement (NOD). The Veteran's past work consists of work as a material handler, parts inspector, and self-employed painter. February 9, 2013, Third Party Correspondence. The Veteran explained that the material handler position involved too much stressful contact with other people such that his absenteeism was bad, and his drinking increased. The Veteran was able to change jobs and began the parts inspector position which was a solitary night shift job with little to no contact with other people. The Veteran was able to successfully perform this position until it was eliminated, and he was laid off in 1981. After being laid off, the Veteran started to paint houses and do handy work to earn a living. The Veteran contends that he has a high school education and has not worked a full-time job since 1981. February 4, 2013, Veteran's Application for Increased Compensation Based on Unemployability. Socially, the Veteran maintained a good relationship with his wife of more than 30 years and his granddaughter, who came to live with the couple. Other than his family and PTSD support group, the Veteran reported limited social interaction. The Veteran indicated, however, that he did have a friend from the military that he sometimes visited to watch football if there were no more than three other guests present. See January 2014, VA Examination. The 2014 VA examiner opined that the Veteran's PTSD resulted in symptoms of depressed mood, anxiety, chronic sleep impairment, suicidal ideations, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. During the 2014 examination, the Veteran expressed that he worried that his physical health would not allow him to work much longer, and he would need to find another career. Ultimately, the Veteran's ischemic heart disease began to impose additional physical limitations that further adversely affected the Veteran's ability to engage in normal work activity. Testing in November 2015 revealed that workload greater than five metabolic equivalents (METs) but not greater than seven METs resulted in dyspnea, fatigue, angina, dizziness, or syncope. April 20, 2016, Medical Treatment Record Non-Government. During an April 2016 VA examination, the Veteran complained of intermittent angina and fatigue associated with exertion. The examiner opined that the Veteran was unable to perform strenuous physical activities due to his heart condition. Taken together, the Board finds that the functional limitations caused by the Veteran's PTSD and ischemic heart disease have rendered him unable to secure or follow substantially gainful employment in light of his high school education and employment history of physically demanding jobs. Although the Veteran's PTSD caused difficulty in maintaining effective social and work relationships, the evidence demonstrates that the Veteran retained the ability to maintain healthy relationships with his family and a military buddy and participate in group therapy. Further the Veteran was able to "earn a living" as a self-employed house painter and handyman. The evidence does not indicate that the Veteran had any difficulties obtaining painting jobs independently or had any difficulties dealing with customers or resolving any disputes. The Veteran remained capable of obtaining and maintaining substantially gainful employment until his psychological deficits were compounded by adverse physical limitations. The fatigue, shortness of breath, dizziness, and chest pain upon exertion served to further limit the Veteran's functional capacity such that he became unable to sustain normal work activity on a routine basis. Due to the combined mental and physical limitations, the Veteran would be absent from work and off task more than allowed by the average employer. Thus, entitlement to a TDIU is warranted. The Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating."). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.