Citation Nr: 21031373 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-10 049 DATE: May 21, 2021 ORDER Effective June 9, 2014, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT Throughout the appeal, the Veteran's service-connected disabilities have precluded him from obtaining and maintaining substantial and gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW Effective June 9, 2014, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.326, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to May 1970, including combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal. This appeal stems from a February 2015 RO rating decision. Entitlement to a TDIU. The Veteran asserts that his service-connected disabilities have rendered him unemployable. See June 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran lists June 7, 1997 as the last time he worked full-time. Id. Service connection is in effect for PTSD at 50 percent from January 2, 2014; bilateral hearing loss at 40 percent from January 2, 2014 and tinnitus at 10 percent from January 2, 2014. 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; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). 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 or of a common etiology or single accident 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. Here, as the Veteran's service-connected disability satisfy the criteria set forth in 38 C.F.R. § 4.16(a). 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)); see also Todd, 27 Vet. App. at 85-86. 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 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran lists June 7, 1997 as the last time he worked full-time. See June 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran was previously employed as a fire fighter and completed 4 years of high school. The Board notes the severity of the Veteran's service-connected psychiatric disability, his hearing disability and tinnitus would severely impact the Veteran's ability to perform the type of manual labor described on the Veteran's Application for Increased Compensation Based on Unemployability. Id. Given the evidence regarding the severity of the Veteran's service-connected psychiatric disability and his service-connected hearing disability, the Veteran's functional limitations due to his service-connected disabilities, his individual work experience and training, and with resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In light of the foregoing, the Board finds that evidence supports the Veteran's entitlement to a TDIU is warranted, effective June 9, 2014, the date of claim, as the evidence shows that the Veteran has been unemployed for more than a year prior to the submission of his claim. Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). REASONS FOR REMAND Entitlement to a rating in excess of 50 percent for PTSD is remanded. The most recent VA examination of record for the Veteran's PTSD occurred in February. The Board finds that this examination is too remote, and the evidence of record is otherwise insufficient, to adequately evaluate the current severity of his psychiatric disability. As such, a remand to provide the Veteran with a contemporaneous VA examination is warranted. The matters are REMANDED for the following action: 1. Request that the Veteran submit or identify relevant evidence not already associated with the claims file pertaining to his PTSD. Attempt to obtain all identified evidence. 2. Notify the Veteran that he may submit lay statements from himself and other individuals who have knowledge of the nature, extent and severity of the Veteran's psychiatric disability and its impact on him both socially and occupationally. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to assess the current, extent and nature and severity of his psychiatric disability. Whether an in-person examination is necessary is left to the discretion of the VA examiner. All necessary tests should be performed and all findings should be reported in a report. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jacquelynn M. Jordan, 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.