Citation Nr: 21014889 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-34 060A DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from April 13, 2010, is granted. FINDING OF FACT The Veteran’s service-connected disabilities have prevented substantially gainful employment since April 13, 2010. CONCLUSION OF LAW The criteria for TDIU rating since April 13, 2010, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2006 to April 2008. In a September 2017 decision, the Board declined to grant entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). The Veteran appealed the fact that the Board did not adjudicate entitlement to a TDIU rating as part of the PTSD increased rating claim. An August 2018 Court of Appeals for Veterans Claims (CAVC) order adopted a Joint Motion for Remand (JMR) for reconsideration of the Veteran’s claim to the extent that the Board did not adjudicate entitlement to a TDIU rating. In March 2019, December 2019, and May 2020, the Board remanded this issue for further development. This issue is once again before the Board. The claim of entitlement to a TDIU rating since April 13, 2010, is currently at issue as part of the claim for an increased rating for PTSD. See August 2018 CAVC Order; Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran filed an original claim for service connection for PTSD on April 13, 2010. An August 2011 rating decision indicates the Agency of Original Jurisdiction (AOJ) granted service-connection for an acquired psychiatric disorder as 50 percent disabling as of April 13, 2010. In a February 2015 rating decision, the AOJ increased the rating to 70 percent disabled for PTSD as of April 13, 2010. Per the JMR and Rice, the claim of entitlement to a TDIU rating during the entire course of the appeal is at issue. Entitlement to a total rating must be based solely on the impact of a veteran’s service-connected disabilities on their ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places them in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total disability rating based upon individual unemployability. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). During the course of the appeal, the Veteran’s service-connected PTSD with polysubstance dependence is rated as 70 percent disabling, and her status post excision of blood clot with scar is rated as noncompensable. Therefore, the Veteran meets the criteria for a TDIU under 38 C.F.R. § 4.16(a) for the course of the appeal. Further, the claims file contains evidence that she cannot secure or follow substantially gainful employment due to her service-connected PTSD. The record reflects that the Veteran completed two years of college. See February 2012 TDIU Application. After service, she attempted to work outside her home at a grocery store in 2018 but quit when the job became too stressful after only seven days. See July 2020 VA Examination. She earned a certificate to work as a medical assistant, but she was unable to continue as that job also became too stressful. Id. She currently works from home for Scentsy, a company that allows her to sell wax and warmers online with minimal customer interaction. Id. In a September 2020 VA examination for PTSD, the examiner determined that working near other employees or interacting with customers will likely cause the Veteran to become anxious, have panic attacks with possible vomiting, and increased likelihood of flashbacks to her MST. The examiner noted that working closely with others may increase the Veteran’s risk for suicide, and she would have difficulty concentrating and problems with mood and motivation. The Veteran has also provided statements indicating that her service-connected PTSD has prevented her from working since service, as the work environment triggers flashbacks of her MST. See, e.g., February 2020 Veteran Statement; October 2020 Lay Statement. The evidence of record indicates that the Veteran has worked at most a handful of days outside her home since service. Additionally, there is no evidence that working from home for Scentsy selling wax and warmers online is substantially gainful employment. Based on the medical and lay evidence of record, the Veteran’s service-connected PTSD with polysubstance dependence precludes her ability to perform substantially gainful employment. A TDIU since April 13, 2010, is granted. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.