Citation Nr: 21024852 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-28 400A DATE: April 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) as of December 3, 2012, but not earlier, is granted. FINDING OF FACT As of December 3, 2012, but not earlier, the service-connected disabilities caused the Veteran to be unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU as of December 3, 2012, but not earlier, are met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1965 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to TDIU prior to May 21, 2015 The Veteran contends that he is unable to work as a result of service-connected post-traumatic stress disorder (PTSD) and traumatic brain disability (TBI). TDIU may be assigned, if the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one service-connected disability it is rated 60 percent or more, and that if there are two or more service-connected disabilities at least one is rated 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16(a).  The central inquiry is whether the service-connected heart disability alone is of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  As of December 3, 2012, the Veteran had established service connection for PTSD, rated 70 percent; bilateral hearing loss, rated 50 percent; tinnitus, rated 10 percent; left ankle scar, rated 10 percent; and traumatic brain injury, rated 0 percent. The Veteran had a total combined service-connected disability rating of 90 percent. Thus, the threshold requirement of percentage service-connected disability rating for consideration of the assignment of TDIU were met as of December 3, 2102, but not earlier. 38 C.F.R. § 4.16(a). Prior to December 3, 2012, the Veteran had established service connection for PTSD, rated 30 percent; tinnitus, rated 10 percent; left ankle shell fragment wound, rated 10 percent; and bilateral hearing loss, rated 0 percent. The combined service-connected disability rating was 40 percent, effective October 22, 2009. In April 2012, the Veteran reported that he worked in quality control for 30 years following separation from service. The Veteran indicated that he retired because he was eligible. Subsequently, the Veteran reported that he had to retire from work due to difficulties caused by memory and neurologic problems. In a January 2010 VA PTSD examination, the Veteran reported that he lost four to five years of work as a result of alcoholism caused by PTSD. The examiner noted that the Veteran retired in 1994 and the cause of the retirement was “eligibility by age or duration of work.” PTSD was not noted as causing occupational impairment and symptoms could be controlled by continuous medication. In an April 2012 VA PTSD examination, the examiner noted that PTSD symptoms could decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In an August 2013 VA TBI examination, the Veteran reported that he worked three months a year for 20 to 30 hours per week from 2006 to 2011. The examiner opined that the Veteran’s TBI did not impact the ability to work. The Veteran was noted as being unable to continue in his seasonal job working at a resort where he did maintenance and landscaping due to combinations of difficulties with neuropathy, irritability, and neck pain; none of which were related to the TBI. In a February 2014 private treatment letter, Dr. P.S. opined that the Veteran was unemployable due to the service-connected disabilities of PTSD, bilateral hearing loss, tinnitus, and memory loss caused by a TBI; other nonservice-connected disabilities were also included in the opinion. The private examiner did not provide an explanation for that finding or in what ways the disabilities impacted the Veteran’s ability to work. In an April 2014 VA PTSD examination, the Veteran reported that memory loss contributed to him quitting his job because he could not remember what he was doing while at work. The Board notes that the examiner indicated that there was no occupational impairment. However, the examiner also marked “no” for mental diagnosis and provided a notation that there was no diagnosis of TBI. Therefore, that opinion is of little probative value. Resolving reasonable doubt in favor of the Veteran, the Board finds that as of December 3, 2012, but not earlier, the service-connected disabilities caused the Veteran to be unable to secure or follow a substantially gainful occupation. The evidence shows that memory issues, irritability, and hearing loss combined to make the Veteran unable to secure or follow a substantially gainful occupation. Prior to December 3, 2012, the evidence does not show that the service-connected disabilities were of the severity to prevent employment. The Board finds that that evidence does not support the referral for consideration of TDIU prior to December 3, 2012. The Veteran’s disabilities did not meet the percentage requirements of 38 C.F.R. § 4.16(a) for consideration of assignment of TDIU. In addition, the evidence does not show that the service-connected disabilities were of the severity to preclude employment prior to December 3, 2012. Accordingly, the Board finds that the criteria for TDIU as of December 3, 2012, are met and TDIU is granted as of December 3, 2012, but not earlier. The Board finds that the preponderance of the evidence is against the assignment of TDIU prior to December 3, 2012. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.