Citation Nr: 21014054 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-03 991 DATE: March 11, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT Service-connected posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI); shell fragment wound, left calf, with residual muscle weakness in muscle group XI; and shell fragment wound, left calf, with residual muscle weakness in muscle group XII, preclude him from performing gainful employment for which is education and occupational experience otherwise qualify him. CONCLUSION OF LAW The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 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 Marine Corps from July 2004 to April 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a December 2020 virtual hearing before the Board; a transcript of the hearing is associated with the claims file. 1. Entitlement to TDIU The Veteran contends that he is unemployable due to his service-connected PTSD with TBI and left leg disabilities. VA will grant TDIU when the evidence shows that the Veteran is precluded — by reason of his service-connected disabilities — from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91. The Veteran meets the schedular criteria for TDIU award based on his service-connected disabilities, including but not limited to PTSD with TBI (rated 50 percent disabling prior to May 20, 2014, and 70 percent disabling thereafter); shell fragment wound, left calf, with residual muscle weakness in muscle group XI (rated 20 percent disabling prior to May 20, 2014, 30 percent disabling thereafter); and shell fragment wound, left calf, with residual muscle weakness in muscle group XII (rated 20 percent disabling prior to May 20, 2014, and 30 percent disabling thereafter). See 38 C.F.R. § 4.16(a). The question therefore is whether the evidence supports entitlement to TDIU. After reviewing the evidence, and granting the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to TDIU. See 38 C.F.R. § 3.102. The Veteran has not worked since separation from service. He completed two years of college courses but did not obtain a degree. The Board notes that the record is mixed with regard to whether the Veteran is capable of securing or following a substantially gainful occupation. On the one hand, July 2014, April 2015, September 2016, and March 2017 VA examinations for PTSD all found that the Veteran had “Occupational and social impairment with reduced reliability and productivity” but did not find that his condition prohibited work. The September 2016 VA examination noted that the Veteran “does not endorse any thought disorder, psychotic symptoms, ritualistic behavior, danger to himself, danger to others, or impulse control problems that would severely impact his ability to work.” A September 2016 VA examination indicated that the Veteran’s left calf condition did not impact his ability to work. On the other hand, a July 2014 VA examination for the Veteran’s left calf muscle disabilities found that these disabilities impacted his ability to work because they “Affect[] ambulation.” A July 2014 VA examination for his left lower leg determined that the Veteran’s left leg disability impacted his ability to work and the Veteran could walk “1/2 mile to a mile” at one time and for “1 to 2 hours” during an eight-hour day; could stand for 20 minutes at one time; and could sit for six hours and stand for two hours during an eight-hour day. A February 2016 VA medical center (VAMC) primary care record noted the Veteran’s social isolation, hypervigilance, “difficulty being in open places,” and “problems with speech and word finding.” The February 2016 VAMC primary care provider stated that “I do not believe he would be competitive in the work market at this time.” A March 2020 letter from a VAMC social worker who had seen the Veteran “intermittently for the past five years” indicated that “Due to his continued avoidance, which is a key feature of PTSD, the Veteran continues to have difficulty dealing with his symptoms effectively. Based on his presentation and symptoms the Veteran is currently not in a position to work and is unemployable at this time.” The Veteran reported in his January 2017 substantive appeal: I cannot tolerate being around people- people make my anxiety kick in, I am unable to tolerate noise of most any level, I also have a very hard time focusing on any task . . . . Simple tasks stress me out, I do stay at home but my wife is normally at home as well and takes care of the kids’ needs. As for my physical disabilities, my movements are impaired and my leg fatigues easily. . . . After periods of standing, my left leg swells and is painful with a pins and needles sensation in my shin and ankle. At the December 2020 Board hearing, the Veteran testified: “I don’t like being around people, interacting with people. I find it hard to get motivated, focus, and concentrate. I have issues with my memory. I just find it difficult to be around people and noise.” He further stated that “If I am in a work setting, I almost feel an overwhelming anxiety and stress. As I have said before, just lots of noise really seems to trigger me. Again, the lack of focus and concentration.” His wife noted that he was “not good with time management,” clarifying that “he is not good at judging how much time [a task] actually takes or starting in enough time to complete it.” Regarding his left calf disabilities, the Veteran reported that he cannot “sit down for extended periods of time” or “be on [his] feet for a prolonged period of time.” Considering this evidence, the Board finds the evidence in equipoise and resolves the reasonable doubt in the Veteran’s favor. Thus, the Board finds that the Veteran is unable to work due to his PTSD with TBI and his left calf disabilities; an award for TDIU is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Ripplinger, 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.