Citation Nr: 21076805 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-10 340 DATE: December 27, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) as due to service-connected disabilities is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a 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 served in the United States Army from March 1971 to March 1973. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) April 2017 rating decision of the Agency of Original Jurisdiction (AOJ). In August 2021 the Veteran appeared before the undersigned Veteran's Law Judge at a virtual teleconference Board hearing. A transcript of the hearing has been reviewed by the Board, and has been associated with the claims file. 1. Entitlement to a TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment, and thus entitles him to a TDIU. A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the poverty threshold for one person. 38 C.F.R. § 4.16 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and 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, 72-73 (2019). The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. While he was in the Army, the Veteran was trained as an infantryman. After separating from the military, the Veteran worked as a skilled laborer as a shipfitter. He completed high school, but only one year of college. Due to his occupational history, the Veteran has limited technical knowledge and ability to utilize computers. At his August 2021 hearing the Veteran reported last working in 2008. The Veteran's claims file shows that as of March 1, 2012, he meets the schedular requirements for a TDIU. As of that time, the Veteran had the following disabilities determined to be service-connected: posttraumatic stress disorder (PTSD) (50 percent disabling as of February 14, 2011); diabetes mellitus (20 percent disabling as of September 29, 2008); peripheral neuropathy of his right leg (20 percent disabling as of January 6, 2012); and peripheral neuropathy of his left leg (20 percent disabling as of January 6, 2012). His combined total disability evaluation is 80 percent from March 1, 2013. The Board notes that for the period of December 28, 2011 to March 1, 2012, the Veteran was in receipt of a 100 percent disability rating for posttraumatic stress disorder. A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). A February 2008 Social Security Administration (SSA) vocational analysis noted that, the Veteran experienced significant occupational challenges. The Veteran was found to have problems balancing, climbing, stooping, kneeling, crouching, and crawling, physical tasks that are necessary for a skilled laborer such as the Veteran. As the Veteran does not have an extensive education, the majority of his vocational skills appears to have been on the job training. Given that the Veteran worked primarily in the shipbuilding industry for several decades, the SSA examiner noted that the Veteran's vocational skills are "not transferrable." In March 2011 the Veteran was seen for a VA examination to determine the severity of his service-connected PTSD. The examiner determined that the Veteran has difficulties when it came to establishing and maintaining "effective work and social relationships." Continuing, the examiner found that the Veteran's PTSD symptoms caused problems while he was working, "particularly under periods of increased stress." This caused "problems in relationship with supervisor," particularly over the "last couple of years he worked." The examiner also reported that the Veteran's "symptoms impacted social interaction." A May 2015 psychiatric treatment note found that the Veteran reported nightmares, flashbacks, and chronic sleep disturbances, that the Veteran had a tendency to isolate himself from others, and that he frequently got "anxious and irritable." The Veteran was noted to have problems "getting along with people." While the Veteran displayed a flattened affect, there was no evidence of suicidal or homicidal ideation. A September 2015 VA examiner found that the Veteran had only "occasional" occupational difficulties, but did note that the Veteran was anxious, suspicious of others, and had chronic sleep disturbances. In February 2017 the Veteran was seen for several VA examinations to determine the severity of his various service-connected disabilities. The VA psychiatric examiner noted that the Veteran displayed some violent tendencies that affected his ability to interact with his coworkers and supervisors. The Veteran reported that he "often feels like hurting someone else," and after arguments with his boss he "felt like killing his boss." The Veteran also stated that he threatened to booby trap his yard "like I did in Vietnam" to stop his neighbor from "walking across the yard." The examiner found that the Veteran displayed anxiety, suspiciousness, chronic sleep impairments, and a significant difficulty in establishing and maintaining effective work and social relationships. Shortly after his psychiatric examination, the Veteran was then seen by another VA examiner to determine the effect of his peripheral neuropathy in his bilateral lower extremities (legs). After noting that the Veteran displayed numbness in both legs, as well as having decreased reflexes, the examiner concluded that the Veteran had "incomplete paralysis" of his bilateral lower extremities. At his August 2021 Board hearing, the Veteran stated that his peripheral neuropathy in his legs cause him issues with standing and walking, to the point that he was unable to do anything with his legs. The Board notes that the Veteran is competent to provide testimony regarding the severity, duration, and frequency of the symptoms he experiences. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran reported that he retired from being a shipfitter in 2008 because he could not "handle" it anymore. His inability to stand or walk for long periods prevented him from prevented him from working both as a shipfitter and from obtaining work after his 2008 retirement. Furthermore, the Veteran reported his PTSD caused concentration issues, and that there were times he would almost get into physical fights with his coworkers or his bosses. Based on the above, the Board finds that the weight of the evidence suggests that the Veteran's service-connected disabilities, especially in combination, are of a nature and severity as to preclude him from engaging in the type of work for which he is qualified by reason of past education, work experience and training. VA examinations and medical records indicate that the manifestations and combined limitations of the Veteran's service-connected disabilities prevent him from obtaining or following substantial gainful employment at least from March 1, 2012, and the criteria for a TDIU are met under 38 C.F.R. § 4.16 (a). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.