Citation Nr: 21074145 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-51 692 DATE: December 14, 2021 ORDER A total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is granted. FINDING OF FACT The Veteran's service-connected disabilities preclude gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1987 to September 1987, December 1988 to February 1989, August 1994 to May 1995, January 2002 to February 2003, and February 2003 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision. A TDIU as a result of service-connected disabilities is granted. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16 (a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16 (b). The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims (CAVC) held "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment by noting attention must be given to the veteran's occupational history, education, skill, and training; as to whether the veteran has the physical ability to perform occupational activities; and as to whether the veteran has the mental ability to perform occupational activities. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In September 2016, the Veteran submitted a formal TDIU application. In it, he reported last working, which does not appear to be work completed full time, in March 2014. His reported work history includes work as a truck driver and fueler. He also reported an unsuccessful attempt at a college education. Service connection is in effect for posttraumatic stress disorder (PTSD) with an associated major depressive disorder, rated as 70 percent from August 16, 2007; right knee patellar tendonitis, rated as 10 percent from June 30, 2005; right knee instability, rated as 10 percent from November 10, 2016; and tinnitus, rated as 10 percent from June 20, 2005. See August 2021 Rating Decision Codesheet. The Veteran has a combined 80 percent evaluation from August 16, 2007, forward. See 38 C.F.R. § 4.16 (a). The Board finds a TDIU is established effective July 11, 2016, which corresponds to the date of receipt of the Veteran's increased rating claim. A TDIU is warranted as the evidence of record supports a finding the Veteran's PTSD and right knee disabilities preclude gainful employment, and the scheduler criteria are also met from such date. Specifically, in November 2016, VA provided the Veteran with a PTSD examination. Occupationally, the Veteran reported his last employment as a truck driver, which ended in 2008. The Veteran reported some concentration issues and that the work was "too monotonous." Before, he reported having worked in construction for thirteen years, and he worked with his father with whom he reported having had no interpersonal issues. The Veteran further reported remaining unemployed and not being involved with outside activities. The examiner noted, "He has significant social impairment." The examiner recorded the following symptoms: a depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; a flattened affect; a difficulty in establishing and maintaining effective work and social relationships; a difficulty in adapting to stressful circumstances, including work or a worklike setting; and obsessional rituals which interfere with routine activities. The examiner indicated the Veteran's symptoms were productive of occupational and social impairment with reduced reliability and productivity. Due to his physical limitations, the Board finds the combined effects of the Veteran's PTSD and right knee disabilities would preclude him from continuing his work as a truck driver and fueler. Regarding this, the evidence above establishes the Veteran's PTSD manifests as occupational impairment, at a level that is at least as likely as not to prevent the Veteran from securing and maintaining substantially gainful employment. As discussed, the medical evidence demonstrates the Veteran has significant occupational impairment due to his PTSD symptoms. Furthermore, the medical evidence of record shows the Veteran's right knee disabilities would have an effect on his employment. In a November 2016 examination report, a VA examiner stated chronic knee pain patients are found to be unable to physically secure and maintain substantially gainful employment in a physically demanding occupation; however, they found the Veteran should be able to secure and maintain substantially gainful employment in a sedentary job that does not require prolonged standing, lifting, or walking. The Board acknowledges the examiner's opinion that the Veteran would be able to engage in sedentary work; however, the evidence of record does not support his prior work experience or education would result in gainful sedentary employment. (Continued on the next page) Finally, a Social Security Administration decision, received in October 2016, found the Veteran is disabled due to his psychiatric disability as of January 1, 2007. While the Board is not bound by determinations of other Federal agencies, the Board finds the determination, i.e., the Veteran's psychiatric disability results in impairment, probative as to the severity of his psychiatric disability. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (holding that Social Security Administration determinations are not controlling for VA purposes). Accordingly, the evidence of record supports a finding the Veteran is precluded from gainful employment due to his service-connected disabilities. Thus, for the above reasons, entitlement to a TDIU is granted for the period from July 11, 2016, which corresponds to the date of receipt of his increased rating claim. P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.