Citation Nr: 21073091 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-29 243 DATE: December 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether service-connected disability has disabled the Veteran from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969. This matter came to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the record and has been reviewed. In September 2019 and July 2021, the Board remanded this matter for additional development. The case is again before the Board for appellate review. TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation by reason of service-connected posttraumatic stress disorder (PTSD), diabetes mellitus type 2 (diabetes), and diabetic complications. Relevant legal authority It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body 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), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and 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 or more. 38 C.F.R. § 4.16 (a). 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. 38 C.F.R. § 4.16 (a). An extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). In such case, the Board refers the claim to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). A TDIU claim is "part and parcel" of an underlying increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; and whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. 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 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 work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The relevant evidence consists of lay assertions from the Veteran, private and VA treatment records, an April 2016 private medical report, and several VA compensation examination reports. The Veteran is rated 70 percent disabled from PTSD, 20 percent disabled from diabetes, 20 percent disabled from diabetic peripheral neuropathy in the right lower extremity, 10 percent disabled from diabetic peripheral neuropathy in the left lower extremity, 10 percent disabled from tinnitus, and 0 percent disabled from non-Hodgkin's lymphoma and from hearing loss disability. The combined evaluation was 70 percent from March 17, 2015 and has been 90 percent since March 4, 2021. As such, the threshold requirement for the assignment of a schedular TDIU are met here. See 38 C.F.R. § 4.16(a). Based on a review of the record, the Board also finds that the evidence is in a state of relative equipoise regarding whether service-connected disability has prevented gainful employment. See 38 C.F.R. § 4.3. The evidence shows that PTSD has impaired the Veteran's ability to work. Certain evidence even indicates total impairment. During the June 2019 hearing, the Veteran described problems with anger, suicidal ideation, memory loss, panic attacks, hypervigilance, and getting along with others socially and occupationally. The April 2016 private report describes PTSD as "severe and chronic." The report states that the disorder involves severe insomnia and causes feelings of alienation and suspiciousness. The examiner noted several symptoms related to PTSD. The report notes a recent conflict at a gas station due to the Veteran's anger, notes suicidal ideation, notes stress, anxiety, discomfort in crowded places, and notes flashbacks, intrusive thoughts, and hypervigilance. December 2015, January 2020, and October 2020 VA reports note severe symptoms such as chronic sleep impairment, bad temper, intrusive memories of service in the Republic of Vietnam, depressed mood, flat affect, and difficulty establishing and maintaining effective social and work relationships. As noted by the Board in July 2021, the private opinion has certain flaws. And certain aspects of the VA reports indicate less severe PTSD. Nevertheless, the evidence clearly shows that PTSD has significantly impaired the Veteran's ability to work productively. Diabetic residuals have also impacted the ability to work. A June 2021 VA report notes neuropathy since 2016 which affects the ability to drive because it worsens pain and causes "pins and needles sensation as well as shock like pain in feet." A January 2018 report notes that during chemotherapy treatment for service-connected non-Hodgkins lymphoma, the Veteran reported having itching, pain and burning in his feet, and a resurgence of the burning and itching pain in both feet in 2016. The Veteran indicated that the problems were "steadily worsening." In sum, the evidence indicates that psychiatric and physical impairment would limit the Veteran's ability to work in either manual or sedentary employment. His career background is working as an auto mechanic. The diabetes-related pain in his legs and feet would interfere with the ability to work in a garage. Further, as has been noted in multiple VA reports, PTSD has caused "difficulty in establishing and maintaining effective work and social relationships." Based on the foregoing, the Board cannot find that a preponderance of the evidence is against the claim of entitlement to a TDIU. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.