Citation Nr: 21016165 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 18-03 112 DATE: March 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran meets the schedular percentage requirements for TDIU during the time period on appeal, and his service-connected disabilities at least as likely as not prevent him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in November 2020. Entitlement to TDIU is granted. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. Id. The Board notes that the first time the issue of unemployability was raised for purposes of a TDIU claim was in the process of appealing the initial rating assigned the Veteran’s posttraumatic stress disorder (PTSD). See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (holding that entitlement to a TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran). The Veteran was assigned a 70 percent rating for his PTSD effective November 2012, the date of service connection, thus satisfying the schedular percentage requirements for TDIU during the entire time period on appeal. The record establishes that the Veteran has been unemployed since 2009. A July 2013 disability benefits questionnaire reflects the Veteran’s diagnoses of PTSD and major depressive disorder. The VA examiner stated that the Veteran’s psychiatric disorders resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood, and that it is not possible to differentiate which psychiatric diagnosis caused the Veteran’s social and occupational impairment. In establishing the diagnosis of PTSD, the VA examiner noted that the Veteran’s symptoms included irritability or outbursts of anger. The July 2013 VA examiner also noted that the Veteran had difficulty in establishing and maintaining effective work relationships and difficulty adapting to stressful circumstances, including work and work like settings. The VA examiner also noted that the Veteran had violent thoughts, including thoughts of shooting people in the street. In September 2013, a private licensed professional counselor opined that, after having reviewed the Veteran’s medical records, and based on the opinions expressed by the Veteran’s treating psychiatrist, including those regarding the Veteran’s PTSD, there would be no work in the national economy that the Veteran could perform. In January 2014, the Social Security Administration (SSA) found that, pursuant to the regulations governing SSA benefits, the Veteran was considered disabled since May 2012, at least in part due to his service-connected PTSD. A May 2015 VA exam reflects the Veteran’s diagnoses of PTSD and major depressive disorder. The VA clinician opined that these disabilities resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. However, the VA clinician went on to opine that it was the Veteran’s depression that caused more severe deficiencies in most areas and that the Veteran’s PTSD appeared to be mild to moderate, and at its worst would likely only result in occasional decreases in work efficiency. On the other hand, the VA clinician noted that the Veteran’s PTSD symptoms included difficulty in establishing the maintaining effective work relationships, difficulty adapting to stressful circumstances, including work and work like settings, and neglect of personal appearance and hygiene. (Continued on the next page)   During the November 2020 Board hearing, the Veteran testified that he worked as a nurse after leaving the military until he was no longer able to, and most recently, he worked as a carpenter until 2009. The Veteran stated that he stopped working because his PTSD resulted in, among other symptoms, problems with authority figures, anger control, and loud noises. In addition, the Veteran testified that he saw “delusions” out of the corner of his eye. The Veteran also reported visual hallucinations in July 2015 and March and August 2017 VA treatment records. The Board finds that the evidence is at least in equipoise as to whether it is possible to differentiate which psychiatric diagnosis causes the Veteran’s social and occupational impairments. After resolving the benefit of reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected PTSD symptoms, particularly those resulting in difficulty in establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting, preclude him from being able to secure and follow substantially gainful employment. Accordingly, the Board finds TDIU is warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.