Citation Nr: 21030677 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-55 147 DATE: May 19, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected post-traumatic stress disorder (PTSD) has precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 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 in the U.S. Army from August 1966 to July 1968. The matter was previously denied by the Board in a December 2018 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court or CAVC), and in March 2020 the Court issued a Memorandum Decision. The Court vacated the portion of the Board's December 2018 decision denying entitlement to TDIU and remanded the matter for further proceedings. Applicable Law Total disability ratings for compensation may be assigned, where 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 such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. The Veteran is considered unemployable if found that his or her service-connected disabilities result in being unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court interpreted the phrase "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran's ability to secure or follow that type of employment. The Court also provided that to determine whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to 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 of lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Also, for consideration is 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 concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. While not a checklist, these are potentially relevant factors for consideration if raised by the evidence. Analysis The Veteran asserts that he is unable to obtain and maintain a substantially gainful occupation due to his service-connected PTSD. The Veteran retired due to disability in 2008 after 20 years as a postal carrier for the United States Postal Service. The record reflects that the Veteran is retired from the USPS and on disability due to a right knee injury. However, the Veteran's argument pertaining to unemployability, pertains predominantly to the time following his retirement and the impact of his PTSD once he became retired. At a September 2014 Mental Health assessment, the Veteran reported that he had been able to manage his PTSD symptoms well until he retired. He relayed that he had not wanted to retire, but that he had medically retired after he fell down a flight of stairs due to a bad knee. However, after his retirement, he has reported a steady decline with an increase of daily PTSD symptoms, which included hypervigilance, feelings of panic, irritability, nightmares, and drinking at least three alcoholic drinks per day. Lay statements submitted by the Veteran's spouse contain discussions pertaining to the Veteran's symptoms of anger, irritability, lack of motivation, memory problems, and self-isolation. Additionally, her statements also relay that prior to the Veteran's employment with the USPS, the Veteran had worked at multiple jobs but had been unable to hold a job down. The Veteran's educational history reflects that he attended college for a year, however, he did not obtain any degrees or certificates. Over the entirety of the period on appeal, the Veteran has been service-connected for PTSD with an evaluation of 70 percent and residuals of a right elbow scar with a noncompensable evaluation. As such, the Veteran has met the schedular rating criteria for a TDIU for the entire period on appeal. (Continued on the next page) In April 2021, the Veteran submitted a private vocational assessment, in which the vocational consultant found that it was more likely than not that the Veteran has been precluded from securing and following substantially gainful employment, to include unskilled sedentary employment, due to his service-connected PTSD with Major Depressive Disorder since at least February 2010 and continuing to the present. The consultant reported a thorough review of the Veteran's file, in addition to a telephone interview with the Veteran. The consultant's conclusion was based primarily off his findings that the Veteran's PTSD symptoms of anger and irritability would cause him to be unable to interact with others appropriately and effectively. Additionally, his PTSD symptoms pertaining to depressed mood, lack of motivation, and sleep impairments would distract him causing him to be off task and underproductive to an extent that an employer would find intolerable. The consultant provided a thorough and well rationalized analysis of his findings, which took into account pertinent evidence, such as VA examinations, lay statements, and the Veteran's education and work history. The Board finds the vocational consultant's rationalization to be consistent with the Veteran's record, and therefore the Board finds that a TDIU is warranted. Accordingly, a TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.