Citation Nr: 21025972 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-04 260 DATE: April 29, 2021 ORDER A total disability rating based on individual unemployability (TDIU) from June 4, 2012 is granted. FINDING OF FACT As of June 4, 2012, the weight of the competent and probative evidence warrants a finding that the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met as of June 4, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1961 to May 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A September 2019 Joint Motion for Partial Remand (JMPR) vacated and remanded a July 2018 Board decision denying service connection for an acquired psychological disorder and entitlement to a TDIU. The Board remanded these matters for additional development in March 2020. In an August 2020 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) with an evaluation of 50 percent and a schedular TDIU each with an effective date of August 19, 2020, the date of a VA examination. Upon return to the Board, the issue of a TDIU was remanded in November 2020 for referral to the Director of Compensation for extraschedular consideration. The Director denied entitlement to an extraschedular TDIU in March 2021. A few days later, a March 2021 Board decision granted an earlier effective date of January 2011 for service connection for PTSD, rendering extraschedular consideration for a TDIU moot as the schedular criteria was now met for the entire period on appeal. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). 1. A total disability rating based on individual unemployability On June 4, 2012, the Veteran filed a claim seeking a total disability rating based on individual unemployability contending that he is unable to work as a result of his service-connected PTSD and right upper extremity weakness. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Based on a review of the record, and after resolving all reasonable doubt in favor of the Veteran, the competent and probative evidence demonstrates that the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. As of January 12, 2011, the Veteran’s service-connected disabilities included PTSD evaluated at 50 percent; right upper extremity weakness evaluated at 40 percent; and hypertension evaluated at 10 percent. His combined disability rating is 70 percent from January 12, 2011. Accordingly, the Board finds that the schedular criteria for TDIU are met during the entire period on appeal. See 38 C.F.R. §§ 4.16(a), 4.25. The evidence indicates that the Veteran worked in building maintenance at a post office from 1985 until he was approved for disability retirement in 2009. The Veteran has a high school diploma and some technical training in air conditioning and refrigeration. June 4, 2012, Application for Increased Compensation Based on Unemployability; June 10, 2015, Request for Employment Information. The Veteran’s ability to work is limited by PTSD and right upper extremity weakness. The Veteran lacks adequate coping resources for dealing with normal stress and life events as a result of PTSD. July 25, 2012, Medical Treatment Record – Non-Government. He is incapable of performing skilled work as he has a marked limitation in understanding, remembering, and carrying out complex instructions. The Veteran’s ability to understand, remember and carry out even simple instructions is moderately limited, as is his ability to interact appropriately with co-workers, supervisors, and the general public. November 23, 2012, Medical Treatment Record – Non-Government. The Veteran has problems gripping, fingering, and manipulating objects and cannot perform repetitive motions with his dominant right hand without causing significant pain. He is restricted from lifting heavy objects. See February 26, 2014, Correspondence; September 26, 2018, Medical Treatment Record – Non-Government. Given the forgoing, the weight of the evidence warrants a finding that Veteran’s service-connected PTSD and right upper extremity weakness preclude him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history. The nonexertional limitations coupled with the exertional limitations impede work at all exertional levels. The lifting and manipulative limitations would prevent all strenuous and physical work, including the Veteran’s past work and any work related to his technical training in air conditioning and refrigeration. The Veteran’s psychological disability is a barrier to employment requiring the ability to understand, carry out and remember simple instructions, the ability to handle normal work pressures and the ability to interact appropriately with co-workers, supervisors, and the general public. The Veteran’s ability to maintain stable employment or have consistent, positive interactions with others in a work setting is limited and renders him incapable of performing the mental acts required by employment. (Continued on the next page)   Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities and the claim for a TDIU is granted as of June 4, 2012. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.