Citation Nr: 21010802 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-24 616 DATE: February 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected posttraumatic stress disorder (PTSD), bilateral hearing loss, tinnitus, and peripheral neuropathy of his bilateral lower extremities have precluded gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1966 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2019. A copy of the transcript has been reviewed and associated with the claims file. This matter was before the Board in January 2020, at which time it was remanded for additional evidentiary development. While in remand status, in an August 2020 rating decision, the RO granted service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and assigned a 10 percent disability rating, effective March 5, 2014, and a 50 percent rating, effective April 25, 2019. There is no evidence that the Veteran filed a Notice of Disagreement (NOD) to the effective date or rating with regard to this issue. Thus, it is not before the Board at this time. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25.  Generally, to be eligible for a TDIU, a schedular percentage threshold must be met.  If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling.  If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000).  The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).  The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001).  When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107.  In the present case, the Veteran filed a claim for entitlement to a TDIU on March 5, 2014. From March 14, 2015, he is in receipt of a 100 percent disability rating. Thus, the issue of entitlement to a TDIU is moot from March 14, 2015. Moreover, the Board notes that the Veteran is in receipt of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) from May 14, 2015. Accordingly, the issue before the Board is whether the Veteran is entitled to a TDIU from March 5, 2014, to March 13, 2015. From March 5, 2014, to March 13, 2015, the Veteran was service connected for PTSD, diabetes mellitus, peripheral neuropathy of the right lower and left lower extremities, tinnitus, and bilateral hearing loss and had an overall disability rating of 70 percent. Thus, he meets the threshold set forth under 38 C.F.R. § 4.16(a). The Veteran submitted a VA Form 21-8940 in March 2015 and indicated that he worked in maintenance from 1969 to 2008. He was a high school graduate. Due to his service-connected disabilities, including hearing loss, neuropathy, and stress, he was unable to maintain substantially gainful employment due to his inability to climb ladders, perform physical work, or hear. The Veteran underwent a VA examination in June 2015 to assess his hearing loss and tinnitus. The examiner indicated that his hearing loss and tinnitus impacted his ability to work due to the requirement of having to look at people to hear what they were saying and the constant ringing in his ears that was deafening. The Veteran was afforded a VA examination in June 2015 to assess his peripheral neuropathy of his lower extremities. The examiner concluded that peripheral neuropathy in both feet impacted his ability to work. He had moderate neurogenic pain in both feet, which made it difficult to stand for prolonged periods of time. He was unable to sit for more than twenty to thirty minutes without having to get up and move about due to increasing numbness and tingling when sitting. The Veteran underwent a PTSD examination in June 2020, which was the basis of the award of service connection from March 5, 2014. The examiner concluded that his PTSD produced occupational and social impairment with reduced reliability and productivity. His symptoms included mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked inability with periods of violence. The Veteran reported that he gets angry very quickly and had a problem with verbal aggression. (Continued on the next page)   Based on the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that his service-connected PTSD, bilateral hearing loss, tinnitus, and peripheral neuropathy of his bilateral lower extremities precluded him from maintaining substantially gainful employment that is consistent with his education and occupational experience from March 5, 2014, to March 13, 2015. In this regard, the Veteran has been employed in maintenance for his entire post-military career. He indicated that he was unable to perform the physical duties of this job, including climbing ladders, due to his peripheral neuropathy of his lower extremities. The June 2015 VA examiner confirmed that the Veteran’s peripheral neuropathy impacted his ability to work due to causing difficulty standing for prolonged periods of time or sitting more than twenty to thirty minutes. Moreover, the Veteran’s PTSD, hearing loss, and tinnitus impacted his ability to work given the difficulty in hearing others and his increased aggression and difficulty adapting to stressful circumstances. As a maintenance worker, the Board finds that difficulty hearing, adapting to stressful circumstances, and the inability to stand or sit for prolonged periods of time would preclude him from performing his duties. Based on his physical and mental impairments, the Board finds that the Veteran was precluded from working in the maintenance industry, even at a sedentary level, or similar work setting from March 5, 2014, to March 13, 2015. In light of the above evidence, the Board finds that the Veteran is not capable of substantially gainful employment due to his service-connected PTSD, bilateral hearing loss, tinnitus, and peripheral neuropathy of his bilateral lower extremities. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.