Citation Nr: 21013271 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-11 167A DATE: March 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected posttraumatic stress disorder (PTSD) precludes him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1969 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in August 2020 when it was remanded for further development. With regard to the increased rating claim for posttraumatic stress disorder (PTSD), the issue was decided by the Board in August 2020, and the decision was effectuated by the RO in a September 2020 rating decision; thus, this issue is no longer before the Board. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Additional factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In this case, the Veteran contends that he is unable to secure and follow substantially gainful employment due to his service-connected PTSD disability. He is currently rated at 70 percent for his PTSD, effective May 20, 2008; 10 percent for tinnitus, effective August 13, 2008; noncompensable for malaria, effective July 31, 1972; and noncompensable for bilateral hearing loss, effective May 20, 2008. Thus, the Veteran meets the schedular criteria for consideration for TDIU. 38 C.F.R. § 4.16(a). The remaining question, therefore, is whether the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. In his August 2016 TDIU application, the Veteran reported last working in July 2010 and having to end his employment due to his service-connected PTSD symptoms. A February 2016 VA examination indicates a diagnosis of PTSD. The Veteran reported not being able to hold onto jobs and being discharged from various employers due to his temper and irritability. In addition, the Veteran reported a depressed mood, anxiety, suspiciousness, disturbances in motivation and mood, difficulty in establishing and maintaining effective work/social relationships, angry outbursts with little provocation resulting in verbal or physical aggression, and feelings of detachment from others. A VA examination in November 2016 noted that the Veteran’s PTSD is likely to result in mood instability (e.g. anger) that in turn is likely to impact his relationship with others in an occupational environment. In December 2017, the Veteran submitted a letter from his psychologist that stated the Veteran’s continued to experience anger outbursts, a negative affect, an exaggerated startle response, poor concentration, poor memory, and social isolation. The psychologist concluded that there was clinically significant impairment in occupational and social relationships. Moreover, a February 2020 VA examination report noted severe PTSD symptoms such as mild memory loss including forgetting names, directions and recent events, as well as impaired judgment, difficulty adapting to stressful circumstances, including in a work setting, and impaired impulse control resulting in periods of violence. The examiner concluded that it is at least as likely as not that the Veteran’s PTSD impacts his ability to engage in any sort of employment and noted several examples such as difficulties engaging in work requiring being around people for sustained periods of time, engaging in work activities that require sustained concentration and focus, engaging in work activities that require judgment calls, and engaging in work activities that require the capacity to remain calm and composed. Additional lay statements by the Veteran’s former supervisor and coworker attest to symptoms consistent with those noted above. The Board further notes that there is no medical evidence or opinion that contradicts the submitted lay statements, examination reports, and the Veteran’s and psychologist’s assertions regarding his symptoms and their impact on his ability to secure and maintain employment. Thus, in light of the above, and resolving reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise with respect to the issue of whether the Veteran is capable of securing and following substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, TDIU is warranted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.