Citation Nr: 21013305 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-62 284A DATE: March 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1998 to July 2001, and then in the United States Army from August 2006 to March 2014, to include service in Afghanistan. Entitlement to a TDIU. The Veteran has asserted that he is incapable of gaining and maintaining substantially gainful employment due to his service-connected disabilities. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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. 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). The evidence of record shows that as of March 2, 2014, he has been service connected with a combined total of 80 percent for posttraumatic stress disorder (PTSD) at 70 percent, benign prostatic hypertrophy with urinary incontinence at 20 percent, tinnitus at 10 percent, and seborrheic dermatitis at 0 percent. As such, the Board finds the Veteran meets the threshold requirement for TDIU as March 2, 2014. Initially, the record demonstrates that the Veteran has a bachelor’s degree in sociology and completed some graduate work prior to his period of active duty service in the Army. The Board notes that the record shows that, with the exception of a brief period of compensated work therapy (CWT) in 2015, the Veteran has not engaged in any type of employment. Regarding the Veteran’s participation in the CWT program in 2015, a January 16, 2015 VA treatment record notes the Veteran was soon to begin working with the CWT for 20 hours per week at 8 dollars per hour. Further, a Social Security Administration (SSA) FICA earnings record shows that in 2015, the Veteran’s earnings totaled $1,634.40. Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment may also be considered to exist when income exceeds the poverty threshold but is earned, as in the Veteran’s situation in this case, in an essentially protected environment. 38 C.F.R. § 4.16(a). The Board notes that the Veteran’s 2015 income was earned in an essentially protected environment and did not exceed the 2015 poverty threshold of $11,770 for one individual, as determined by the United States Department of Health and Human Services. As such, the Veteran’s 2015 employment was only marginal. Next, the Board notes that throughout the period of appeal, VA treatment records have shown the Veteran suffers from symptoms, with fluctuating severity, of depression, anxiety, irritability, social isolation, avoidant behavior, anhedonia, paranoia, delusions, intermittent suicidal ideation, intermittent hallucinations, intermittent poor hygiene and extremely poor impulse control. The Veteran was afforded a contract VA PTSD examination in May 2015. Diagnoses of PTSD and severe major depressive disorder were rendered. The Veteran’s PTSD was noted as producing symptoms of hypervigilance, exaggerated startle response, nightmares, flashbacks, irritability, avoidance of triggers and detachment from others. His severe major depressive disorder was noted as producing symptoms of sadness, tearfulness, suicidal ideation, isolation, anhedonia and lack of motivation. Both were noted as producing sleep disturbance and difficult social interactions. Occupational and social impairment with reduced liability and productivity was noted. The Veteran was afforded a VA PTSD examination in November 2016. Diagnoses of major depressive disorder and alcohol use disorder, in remission, were noted. It was further noted that the symptoms could not be differentiated. Depressed mood, anxiety, suspiciousness, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting, were noted. A January 22, 2018 private vocational assessment from R. L Generaux, Ph.D., a private counselor, notes the Veteran “has not sustained a full-time paying job” since leaving the service. The counselor asserted that “the Veteran is not able to work at any job that would provide him money, event at the poverty threshold.” It was noted that the Veteran has been hospitalized for his mental conditions on numerous occasions and asserted that “he will continue to be hospitalized, thus eroding the occupational base to zero.” It was then noted that the Veteran has had suicidal thoughts and a “propensity to be involved in activities that could potentially harm him”. The counselor further asserted that “[h]e is not able to function in society due to a combination of mental elements”, noting that he “has suicidal ideation and depression so severe that it affects his ability to function independently, appropriately, or effectively”, as well as impaired impulse control. Finally, the Board notes that, as of September 25, 2019, the Veteran has been found incompetent to handle his own funds. In light of the evidence of record, the Board finds that uthe Veteran is nemployable due to his service-connected disabilities, and that a grant of TDIU is warranted. Geib. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.