Citation Nr: 21075947 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 18-16 517 DATE: December 22, 2021 ORDER Entitlement to a total disability based upon individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran's service-connected disabilities preclude him from obtaining and engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to October 1968 and August 1983 to September 1983. The Veteran testified at a hearing before the undersigned in September 2021. A transcript of the hearing is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to a TDIU The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. On his application for TDIU, the Veteran said he had completed 2 years of college, was self-employed as a landscaper and last worked full-time in 2006. See October 2014 VA Form 21-8940. The schedular criteria for TDIU are met. 38 C.F.R. § 4.16(a). The Veteran is service connected for post-traumatic stress disorder (PTSD), evaluated as 70 percent disabling; diabetes mellitus, 20 percent; right ankle injury, 10 percent; hearing loss, 10 percent; and tinnitus, 10 percent disabling. The combined disability rating is 70 percent from June 7, 2011; and 80 percent from October 2015. 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 disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The central inquiry in a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19. The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). After the review of this evidence, the Board finds that entitlement to TDIU is warranted. At the Board hearing, the Veteran identified his service-connected PTSD, diabetes, right ankle, hearing loss, and tinnitus as impacting his ability to secure employment. The Veteran also reported that he last worked full time in 1993 at a chemical plant in the control room, but the company moved to a different state and the Veteran did not want to relocate. He was then self-employed as a landscaper for 5 years but found the work too strenuous. Evidence in support of the claim includes a June 2020 opinion from Dr. P.S., the Veteran's treating physician. Dr. P.S. opined that the Veteran is "unable to work at this time due to multiple conditions include depression, anxiety, chronic insomnia and PTSD." Previous VA examinations have addressed the severity of Veteran's service-connected disabilities and the functional impact of the specific disability considered. There is no VA opinion that addresses the combined effect of the Veteran's service-connected disabilities. An October 2016 VA PTSD examination included that examiner's characterization of the related occupational and social impairment as "with reduced reliability and productivity." A November 2018 VA Diabetes examination included that examiner's comment of the functional impact as "when [the Veteran] does not eat, he loses his focus and also has decreased energy." A December 2018 VA ankle examination included the examiner's finding that, as a result of the service-connected right ankle disability, the Veteran would have difficulty with occupational tasks that require him to walk or stand for long periods of time. There was no reported difficulty with sedentary tasks. Ultimately the question as to whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran has consistently stated he stopped working because the symptoms of his service-connected disabilities make it difficult for him to work. The Board finds the June 2020 positive nexus opinion probative. Considering that opinion and the effects of the service-connected PTSD, ankle and diabetes disabilities as described in VA examinations, the evidence demonstrates that the Veteran is unable to engage in substantially gainful employment, to include physical and sedentary employment, as a result of his service-connected disabilities. Therefore, the benefit of the doubt is resolved in the Veteran's favor; entitlement to TDIU is granted. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.