Citation Nr: 21073786 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-32 663 DATE: December 10, 2021 ORDER Entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for entitlement to a TDIU 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 served on active duty in the United States Army from December 1965 to September 1967, including in the Republic of Vietnam. He received the Vietnam Service Medal and Republic of Vietnam Campaign Medal, among other decorations. The Board sincerely thanks him for his honorable military service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107. The Veteran testified before the undersigned Veterans Law Judge during a hearing in August 2021. A transcript of the hearing is associated with the claims file. 1. Entitlement to a TDIU A TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, 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, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. In adjudicating the issue of entitlement to a TDIU, the Board may not consider any nonservice-connected disabilities or advancing age. However, 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. The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran's only service-connected disability is PTSD. He is rated at 70 percent since December 1, 2017. He meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16. He filed his application for TDIU in January 2018. The question for the Board is whether the Veteran was unable to secure and follow substantially gainful employment at any time during the appeal period. The Veteran's DD Form 214 shows a military occupational specialty of artillery surveyor. After service, he worked as a pipeline welder for a utility company for thirty years until retiring in 2004. He worked in several temporary jobs after retirement, including at a car dealership and a manufacturing company. He provided a list of those jobs indicating that they all ended by either being fired or threatened with termination. At his personal hearing, he explained how the symptoms of his PTSD prevented him from effectively working and interacting with others. He further indicated that his PTSD prevented him from getting adequate sleep, which resulted in difficulty concentrating and daytime fatigue. He felt that the difficulty concentrating and fatigue would prevent him from working safely and effectively in most work settings. Records show that he received two years of college, but no other advanced training or degree. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). The Board finds that the evidence is at least in equipoise regarding the claim of entitlement to a TDIU. In reaching this decision, the Board has considered the significant level of functional impairment attributed to the Veteran's PTSD, along with his limited occupational and educational history. Such factors tend to support a claim for TDIU. Accordingly, and with the benefit of the doubt resolved in the Veteran's favor, a TDIU is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.