Citation Nr: 21007006 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 19-15 207 DATE: February 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from September 25, 2018. FINDING OF FACT Since September 25, 2018, the Veteran’s service-connected posttraumatic stress disorder (PTSD) has rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met from September 25, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1966 to August 1970. This matter comes before the Board on appeal from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s increased rating claim for PTSD. In November 2019, the Board denied entitlement to a rating in excess of 70 percent for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Partial Remand, the Court found that entitlement to a TDIU was raised by the record, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court vacated and remanded the November 2019 Board decision to the extent it did not consider whether the Veteran was entitled to a TDIU. 1. Entitlement to a TDIU is granted from September 25, 2018. A total disability rating may be assigned, where the schedular rating is less than total, 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. The appeal period before the Board stems from the Veteran’s September 25, 2018 claim for an increased rating for his service-connected PTSD, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Given the Veteran’s 70 percent rating for PTSD, he meets the criteria for consideration of TDIU on a schedular basis due to this disability alone. He is also service-connected for left cranial nerve palsy, left zygomatic maxillary complex disability, bilateral mandible disability, and a scar, and has a combined rating of 70 percent from May 10, 2013. Thus, the Veteran meets the criteria for consideration of a TDIU on a schedular basis for the entire appeal period. 38 C.F.R. § 4.16(a). Accordingly, what remains to be determined is whether the functional impairment associated with his disabilities is of such nature and severity as to preclude substantially gainful employment. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  The evidence reflects that the Veteran last worked in July 2014 and that he does not receive income from employment exceeding the federal poverty threshold. See March 2015 and August 2015 VA Forms 21-4192; August 2014 and August 2015 VA Forms 21-8940. In 2016, the Veteran reported securing employment at a tutoring company, but the record indicates he did not actually work there. See January and February 2016 VA treatment records. Accordingly, Board finds that the economic component of entitlement to a TDIU is met because the record shows that the Veteran has not been employed during the appeal period. Regarding the noneconomic component, the Veteran reports having a bachelor’s degree in psychology, a master’s degree in education, a master’s degree in divinity, and a doctoral degree in theology. See August 2014 VA Form 21-8940 and March 2015 VA vocational counseling record. The evidence of record indicates that the Veteran is not able to follow a substantially gainful occupation as a result of his service-connected PTSD. While the October 2018 VA examiner found the Veteran’s PTSD resulted in reduced reliability and productivity, she also noted that the Veteran exhibited difficulty in establishing and maintaining effective work relationships, difficulty adapting to stressful circumstances, including work, obsessional rituals that interfere with routine activities, and an intermittent inability to perform activities of daily living, which the Board finds is demonstrative of an inability to work due to PTSD. See October 2018 VA examination report. Notably, a March 2015 VA vocational counselor opined that the Veteran’s PTSD contributed in substantial part to his vocational impairment, based on his reports of difficulty with supervision, difficulty negotiating conflict on the job, difficulty with approaching people, difficulty managing his anger in the workplace, a slow working pace, impaired focus and concentration, and feelings of stress and frustration regarding his functional limitations. The vocational counselor noted that the Veteran did not present well for his educational level and indicated that he possessed very limited transferable skills that would enable him to competitively engage in employment within his functional limitations as a result of his PTSD. She further found that the Veteran’s impaired ability to perform psychosocial job demands severely impact his ability for competitive employment and determined that he had a serious employment handicap. The Board emphasizes that the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Given the Veteran’s competent and credible reports, the above-cited evidence of record, and affording him the benefit of the doubt, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation due to his service-connected PTSD. Accordingly, a TDIU is established for the entire appeal period, from September 25, 2018. In this regard, there is no pertinent evidence demonstrating an ascertainable increase in the Veteran’s disability picture within the one-year look-back period, such that it resulted in unemployability, to allow for assignment of a TDIU during that time. Therefore, a TDIU is granted from September 25, 2018. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.