Citation Nr: 21024443 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-26 141 DATE: April 22, 2021 ORDER A total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) since October 12, 2016, is granted. FINDING OF FACT Given the Veteran’s education, work history, and the mental impairments resulting from his service-connected PTSD disability, the Veteran is unable to obtain or maintain gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU since October 12, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.10, 4.16, 4.18, 4.19, 4.25 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1963 to January 1966. In March 2021, the Veteran and his spouse testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. Total Disability Rating based on Individual Unemployability A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Provision 38 C.F.R. § 4.16 (a) establishes that the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In determining TDIU, the record must reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2016). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). 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). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Entitlement to a TDIU since October 12, 2016 Service-connected disability compensation is in effect for posttraumatic stress disorder (PTSD) at 70 percent disabling; tinnitus at 10 percent disabling; and noncompensable hearing loss. The combined rating for these disabilities is 70 percent. The initial threshold requirements for entitlement to TDIU are thus met. The question for consideration is whether the Veteran can perform the physical and mental acts required by employment. At a November 2016 VA medical examination for PTSD, the Veteran reported struggling with multiple anxiety-related problems after discharge that were eventually diagnosed as PTSD. The examiner diagnosed the Veteran with PTSD, and noted the Veteran endorsed depressed mood; suspiciousness; chronic sleep impairment; flattened affect; impaired judgment; impaired abstract thinking; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and neglect of personal hygiene. During the evaluation the examiner noted the Veteran demonstrated a predominant mood of apprehensiveness with a suppressive and remorseful thought process. In a March 2017 statement from his treating readjustment counselor, the examiner noted the Veteran demonstrated “intense” psychological distress when exposed to internal or external cues that symbolized his in-service trauma. The examiner also noted the Veteran endorsed severe intrusive thoughts; nightmares; insomnia; disturbances in motivation and mood; avoidance; isolation; hypervigilance; exaggerated startle response; depression; anhedonia; anxiety; unprovoked anger and aggression; irritability; and self-destructive behavior. The examiner opined the Veteran experienced “significant clinical distress” in his social and occupational functioning. At the March 2021 Board hearing, the Veteran explained he was most recently self-employed from 1995-2016 as a cattle subsidy participant to buy and sell calves raised on his farm. He explained that this business venture resulted in severe debt because the sale of the calves rarely generated sufficient income to pay down the debt incurred to buy them. He further reported however that he continued in the subsidy program for as long as he could because he enjoyed the work. He also explained that he sold the last of his calves last year and that he still owed several thousand dollars. He described past employment experiences, but how they generally ended due to the Veteran’s inability to maintain effective social and work relationships. The Veteran’s TDIU application noted he completed 2 years of college and obtained a real estate license after discontinuing the subsidy program. The evidence in in approximate balance. Given the Veteran’s education, work history, and the mental impairments resulting from his service-connected PTSD disability, TDIU will be granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.