Citation Nr: 21024318 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-29 851 DATE: April 22, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) due to the Veteran’s service-connected PTSD is granted. REMANDED Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran’s PTSD resulted in his inability to obtain and maintain employment. CONCLUSION OF LAW Throughout the appeal period, the criteria for entitlement to a total disability rating due to individual unemployability (TDIU) based on service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1966 to May 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2021. TDIU The Veteran seeks a TDIU due to his service-connected PTSD. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the following: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran receives a 70 percent rating for his PTSD during the appeal period. The Veteran has some college education. See December 2016 private treatment record. He reports no significant work history. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran’s PTSD prevented him from securing and following substantially gainful employment throughout the appeal period. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the limitations by the Veteran’s service-connected PTSD, the Veteran is unable to perform jobs consistent with or requiring functioning in a work like setting. He has depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. The Veteran also reports having tried to maintain employment at his wife’s company, but having difficulty interacting with people and performing the duties necessary for success at his job. His wife’s lay statements also detail the Veteran’s difficulty working at her company. As the Veteran does not have any significant occupational history and his PTSD results in his inability to obtain and maintain employment, the Board finds that a TDIU is warranted throughout the appeal period. At his April 2021 hearing, the Veteran testified that the grant of TDIU would satisfy his appeal regarding this issue. See AB v. Brown, 6 Vet. App. 35, 38 (1993). REASONS FOR REMAND At the April 2021 hearing, the Veteran asserted that his PTSD worsened. Although VA is granting entitlement to a TDIU due to the Veteran’s psychiatric disability alone, because the evidence suggests that the disability might warrant a 100 percent schedular rating, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). These matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of the Veteran’s PTSD. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ijitimehin, Kemi D. 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.