Citation Nr: 21012241 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-40 056 DATE: March 3, 2021 ORDER Entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) is granted. FINDING OF FACT The most probative evidence is at least in equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to his service-connected posttraumatic stress disorder (PTSD) and other disorders. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1967 to September 1969, including in the Republic of Vietnam. He received the Vietnam Service Medal with Two Bronze Stars, the Army Commendation Medal, the Bronze Star Medal with “V” device, the Combat Infantryman Badge, and the Purple Heart, among other decorations. The Board sincerely thanks the Veteran for his honorable service to the United States during the Vietnam War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. Legal Criteria – TDIU A TDIU may be assigned 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(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. In adjudicating the issue of entitlement to a TDIU, the Board may not consider any nonservice-connected disabilities or advancing age. However, the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Entitlement to a TDIU The Board finds that the most probative evidence is at least in equipoise as to the claim of entitlement to a TDIU. Therefore, the appeal is granted. The Veteran’s service-connected disorders consist of: PTSD, rated as 70 percent disabling from April 30, 2013; muscle injuries, right upper extremity, muscle groups I, II, III, and IV, rated as 30 percent from April 30, 2013; and muscle injuries, left upper extremity, muscle groups I, II, III, and IV, rated as 30 percent from April 30, 2013. He receives a non-compensable rating for scars of the right and left upper extremities. His combined rating is 80 percent, and, thus, the Veteran meets the initial schedular rating threshold for a TDIU. 38 C.F.R. § 4.16(a). The question for the Board is whether he is unable to secure and follow a substantially gainful occupation due to his service-connected disorders. The Veteran’s DD Form 214 reveals a military occupational specialty of light weapons infantryman. After service, he worked as a tool and die apprentice, and then as a manufacturing engineer from 1975 until 2009. He endorsed one year of community college, but no other formal education or training. The Veteran underwent a VA mental health examination in September 2014. The examiner found that the Veteran suffers from occupational and social impairment with reduced reliability and productivity due to his PTSD. He listed symptoms for rating purposes including difficulty in establishing and maintaining work and social relationships, disturbances in motivation and mood, and panic attacks occurring weekly or less often. The examiner submitted an addendum opinion in March 2015. He found that the “Veteran may experience some diminished reliability and productivity in the workplace due to his PTSD symptoms but remains capable of gainful employment.” He cited to the Veteran’s long work history without significant behavioral or performance problems and noted that the Veteran’s VA mental health care notes showed an improvement in mood, sleep, and energy level since the VA examination in 2014. The record reflects a letter from B.G., a licensed master social worker, dated November 2015. B.G. stated that the Veteran is actively involved in readjustment counseling on an individual basis and in the process of developing effective coping mechanisms to manage symptoms associated with PTSD. However, he stated that the Veteran’s PTSD symptoms have debilitated his ability to achieve a desired quality of life and is faced with lifelong struggles to manage incapacitating mental health symptoms. B.G. stated that it was his clinical opinion that the Veteran will be unable to re-enter the workforce as thoughts and feelings he previously avoided began to resurface around retirement, which has led to an increase of symptoms associated with PTSD, including depression. The Veteran, his wife, and his daughter each submitted lay statements in support of the appeal. The Veteran stated, among other things, that even with medication he still has long bouts of depression on a very regular basis, struggles to get a good night’s sleep due to bad dreams and flashbacks, and is unable to concentrate as he moves from activity to activity. His wife reported that the Veteran is unable to tolerate social situations, has to watch television with the sound off to avoid loud noises, and did not formulate relationships with coworkers when he was working. His daughter described how the Veteran’s PTSD symptoms had negatively impacted his activities of daily life and his familial relationships. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). The Board finds that the most probative evidence of record, including B.G.’s clinical opinion, is at least in equipoise as to whether the Veteran is unable to secure and follow a substantially gainful occupation due to the severity of his service-connected PTSD. The Board has also considered the Veteran’s educational and occupational history, and finds that such factors support a grant of TDIU in this case. Therefore, with the benefit of the doubt resolved in the Veteran’s favor, a TDIU is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.