Citation Nr: 21067535 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 10-47 231 DATE: November 4, 2021 ORDER On and after February 27, 2009, entitlement to a total disability rating based on individual unemployability (TDIU) is GRANTED. FINDING OF FACT On and after February 27, 2009, the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW On and after February 27, 2009, the criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from September 1967 to April 1969. On and after February 27, 2009, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. In January 2009, the Veteran submitted a VA Form 21-4138. Therein, the Veteran relayed that, "I am unable to secure substantially gainful employment because of my leg condition." In January 2009, the Veteran submitted a VA Form 21-4138. Therein, the Veteran relayed that, "I cannot maintain gainful employment because of my PTSD, and my right leg wound with vascular disease in both lower legs." Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (West 2014). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a) (2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain 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. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In April 2009, the Veteran submitted a VA Form 21-8940. Thereby, the Veteran continued a claim for increased compensation based on unemployability. The Veteran relayed that he was always self-employed, but had not worked full-time since 1989. The Veteran relayed that his "legs" prevented him from securing or following any substantially gainful occupation. The Veteran relayed that he had a 7th grade level of education. The Veteran relayed that he became too disabled to work, and last worked full-time, in 1989. In March 2009, a VA examination report, which addressed the service-connected posttraumatic stress disorder (PTSD), was associated with the claims file. Therein, the examiner reported that the Veteran had previously worked as a carpenter, but he had been unemployed for the last 7-9 years. The examiner relayed that, "(the Veteran) would have difficulty working in any work setting where he is employed by others. He was able to work as a self-employed carpenter, but acknowledged difficulty with supervisors when employed by others. . . . He is able to maintain some brief and superficial contact with others, but would have difficulty with prolonged contact. . . . Because of his hypervigilance he is easily distracted. This would likely impact work pace. . . . (I)t would not appear that there have been any episodes of remission of his chronic posttraumatic stress disorder . . .." After review of the claims file, the Board notes that the Veteran has been service connected for the following disabilities during the claim period: posttraumatic stress disorder (50 percent on and after February 27, 2009); residuals of a gunshot wound of the right lower extremity (10 percent on and after May 1, 1969); peripheral nerve damage of the right lower extremity (10 percent on and after February 27, 2009); and two right lower extremity scars (noncompensable on and after November 26, 2010). On and after February 27, 2009, the Veteran has received a 60 percent combined evaluation for VA compensation purposes. In a July 2015 Remand, the Board determined that, because the Veteran's PTSD, gunshot wound residuals, peripheral nerve damage, and scars all had a common etiology (his combat-related gunshot wound in service), and combined for a total 60 percent evaluation, he met the schedular requirements for a TDIU on and after February 27, 2009. See 38 C.F.R. § 4.16 (a). The Board's 2015 determination, on the schedular requirements for TDIU on and after February 27, 2009, were noted in the Board's August 2019 remand of the Veteran's claim for TDIU. In August 2019, the Board addressed the Veteran's claim for a TDIU rating. At that time, the Board found that the evidence of record did not show that the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. In August 2020, the Court of Appeals for Veterans' Claims (Court) issued a Joint Motion for Remand. Therein, the Court vacated the Board's denial, and relayed that the Board did not provide an adequate statement of reasons or bases for the denial of TDIU. The Court noted that the Veteran did not mention right leg vascular disease in the March 2009 application for TDIU. The Court relayed that the resultant mischaracterization of the claim was significant, because the Veteran is receipt of service connection for two right leg / lower-extremity residuals of a gunshot wound and right thigh peripheral nerve damage. The Court also noted that the Veteran indicated that he was receiving Social Security Administration (SSA) benefits during a March 2009 VA examination; however, the last request for SSA records was made in January 2008. In January 2021, the Veteran's SSA records were associated with the claims file. In September 2021, correspondence from the Veteran's physician was associated with the claims file. Therein, after a significant description / review of the pertinent history and medical principles, the provider relayed that, "(s)ince May 2005, despite his strong desire to work, (the Veteran's) worsening symptoms of mental illness would not be consistent with the requirements of a modern workplace, where the veteran would struggle with interpersonal interactions and the necessary physical tasks. This constellation of symptoms represents the definition of total disability." The provider opined that, "(w)hether the Veteran was tasked with active, sedentary, or other forms of work, the consequences of PTSD and medical disease would preclude him from meaningfully and gainfully employed environments." The provider relayed that, "(i)f the Veteran did not have PTSD . . . he would have relied upon pharmacologic strategies and surgical interventions to maintain occupational functioning. However, this not the case for the Veteran who could not work because of PTSD symptomatology. . . . (T)he Veteran had an intractable and pervasive mental illness, which caused total disability." After deliberate review of the evidence in the claims file, the Board now concludes that the Veteran is, at best, only marginally employable, due to the effects of his service-connected disabilities. The evidence of record demonstrates that the Veteran's service-connected PTSD and right lower extremity disabilities render him unable to secure and follow a substantially gainful occupation. In resolving all doubt in the Veteran's behalf, entitlement to a TDIU has been established and his appeal is granted, on and after February 27, 2009. See 38 C.F.R. § 4.16. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.