Citation Nr: 21023422 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-30 821 DATE: April 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT It is just as likely as not the Veteran’s service-connected disabilities render him unable to obtain or maintain employment that could be considered substantially gainful versus just marginal in comparison. CONCLUSION OF LAW The criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.340, 3.341, 4.3, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to December 1970. In September 2018, the Board of Veterans' Appeals (Board) denied the Veteran's claim of entitlement to TDIU. He subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a March 2020 memorandum decision, the Court vacated the Board’s September 2018 decision denying this claim and remanded it to the Board for further development and re-adjudication in compliance with directives specified. In November 2020, the Board remanded the claim for further development. Entitlement to a total disability rating based on individual unemployability (TDIU) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry in a claim for TDIU is "whether the Veteran's service[-] connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's service-connected disabilities are: posttraumatic stress disorder (PTSD), rated as 50 percent disabling from October18, 2010 and 70 percent disabling from January 28, 2021; diabetes mellitus type II, rated as 20-percent disabling; coronary artery disease (CAD), rated as 10-percent disabling, tinnitus, rated as 10-percent disabling. The combined schedular rating was 70 percent from October 18, 2010 and has been 80 percent since January 28, 2021. 38 C.F.R. § 4.25. Therefore, the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU are met. Thus, the remaining (and dispositive) question is whether these service-connected disabilities render the Veteran incapable of engaging in substantially gainful employment, and the Board concludes they do. Regarding his education and employment history, the Veteran indicated on his July 2014 TDIU application that he had completed four years of college and had last worked full time as an engineer in June 1994. The Board finds that the evidence is at least in equipoise on whether the Veteran’s service-connected disabilities preclude him from re-entering the workforce in a substantially gainful occupation consistent with his level of education and prior work experience and training. In this circumstance he is given the benefit of the doubt and the claim granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). On January 2021 examination, the examiner surmised the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. In a January 2021 Individual Unemployability Statement, the examiner noted that, as a result of the Veteran's PTSD, the Veteran has difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task and is so depressed that he has difficulty sustaining energy and motivation to complete assignments at work. Given the nature and severity of his service-connected disabilities (most notably his PTSD), the Board finds it reasonable to conclude that throughout the period being considered, the Veteran's service-connected disabilities have rendered him unemployable. His evaluation and treatment records show functional impairment owing to his service-connected disabilities and consequent symptoms that preclude him from obtaining or maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience and training, but not his advancing age or impairment owing instead to disabilities that are not service connected. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for' 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2 (2013)." R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Poindexter 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.