Citation Nr: 21020983 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 190722-13902 DATE: April 8, 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 the aggregate effect of 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 a 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 March 1968 to March 1972. The Veteran was denied entitlement to a TDIU in a March 2020 Board decision. The Veteran appealed the March 2020 Board decision to the Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Partial Remand (JMPR) in October 2020. The JMPR remanded the issue of entitlement to TDIU for the Board to (1) explain if the Veteran’s service-connected posttraumatic stress disorder (PTSD) precluded substantially gainful employment (2) address the aggregate effect of the Veteran’s multiple service-connected disabilities, (3) address the April 2019 VA examiner’s statement that the Veteran was “unable to perform work related activities,” and (4) adequately address the Veteran’s occupational history. The case has been returned to the Board for further appellate review. 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 Veteran was assigned a combined 80 percent rating for his service-connected disabilities effective November 12, 2018, with a 60 percent rating for his service-connected CAD effective the same day, and a 50 percent rating for his service-connected PTSD effective May 2018. Thus, the schedular percentage requirements for TDIU have been satisfied during the entire time period on appeal. The record establishes that the Veteran worked as a draftsman since leaving the military until his retirement in 2013. A July 2018 disability benefits questionnaire reflects that the Veteran’s service-connected PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In establishing the diagnosis of PTSD, the July 2018 examiner noted that the Veteran’s symptoms included irritability or outbursts of anger and difficulty concentrating. The July 2018 examiner also noted that the Veteran experienced mild memory loss, difficulty in understanding complex commands, impaired judgment, difficulty in establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. In a report enclosed with the July 2018 DBQ, the examiner noted additional symptoms associated with the Veteran’s PTSD, including, decrease in work efficiency, depressed mood with disturbance of motivation, and compromised social judgement with lack of self-predictability, reliability, and social adaptability resulting in social withdrawal. In an October 2018 VA examination report, the VA examiner noted that the Veteran’s PTSD did not interfere with the Veteran’s occupational and social functioning. However, the October 2018 VA examiner also noted that the symptoms associated with the Veteran’s PTSD included irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, and difficulty in adapting to stressful circumstances, including work or a work like setting. An April 2019 VA examination report regarding the Veteran’s service-connected CAD reflects that the Veteran is unable to perform work related activities due to fatigue and shortness of breath on exertion. The Board finds that the aggregate effect of the symptoms of the Veteran’s service-connected PTSD and CAD, particularly those resulting in difficulty in establishing and maintaining effective work relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and an inability to perform work related activities, preclude him from being able to secure and follow substantially gainful employment. Accordingly, the Board finds entitlement to a 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.