Citation Nr: 21031393 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 13-07 179 DATE: May 21, 2021 ORDER Effective December 7, 2010, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran's service-connected posttraumatic stress disorder (PTSD) alone has prevented him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW Effective December 7, 2010, the criteria for entitlement to a TDIU due to PTSD have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from July 1971 to July 1974, and from July 1974 to March 1976. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran previously testified before other Veteran Law Judges (VLJs) in February 2015 and August 2018. The Veteran testified before the undersigned VLJ in February 2021; at the hearing, the undersigned VLJ notified the Veteran that both of those VLJs had since retired. This case was previously remanded by the Board in September 2015 and February 2019 decision for additional development. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran filed his claim on December 7, 2010, and he seeks an award of TDIU effective that date. The Veteran, however, asserts that the combination of his service-connected posttraumatic stress disorder (PTSD) and his service-connected eczema and neurodermatitits (skin disability) combine to render him unable to work. In addition to manifestations of his PTSD, the Veteran reports embarrassment due to his skin disability. 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 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, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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 work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in May 2011, which reflects that he has a high school education. He stated that he last worked full-time in November 2006, and his disabilities affected full-time employment and he became too disabled to work in August 2008. His employment history indicated he worked as an operator at a Kellogg's plant following separation from service for ten years, and most recently worked for Memphis City schools as a building supervisor for approximately twenty years. Veteran also had training as a locksmith, steam/refrigeration engineer, and in completing small engine repairs. Additionally, in June 2011 Memphis City Schools submitted a VA Form 21-4192 on behalf of the Veteran in which they indicated he was employed with them from 1990 through 2008 and he retired to due disability. At his August 2018 Board hearing, the Veteran contends that he was diagnosed with PTSD from VAMC Memphis two to three years prior and his mental conditions prevent him from working and he has been deemed disabled by Social Security since 2008. He also stated his skin disorder also keeps him from obtaining employment because of the topical medications he must consistently apply to his face. The Veteran was afforded a VA examination in January 2020 for PTSD. He was deemed to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In his February 2021 Board hearing before the undersigned VLJ, the Veteran further testified that he has not been able to obtain employment and is unemployable because he cannot handle directions from authority, becomes sleepy and is subject to mood altering due to the medications he takes for his psychiatric condition. He also suffers from a lack of concentration and has an impairment of memory due to his medications. Veteran has issues in dealing with people and has trouble being in crowds. He also refers to his service-connected skin disorder as "embarrassing," and it interferes with his ability to work as he is embarrassed by the "very visible" cream that he must continuously apply on his skin and it inhibits his ability to complete interviews. The Veteran's service-connected disabilities include the PTSD with alcohol use disorder, which is rated at 70 percent, effective December 2010, and his eczema and neurodermatitis which is rated 0 percent from February 2011. The Veteran's combined disability rating is 70 percent, effective December 7, 2010, and his disabilities met the schedular criteria set forth in 38 C.F.R. § 4.16(a). Given the evidence regarding the severity of the Veteran's service-connected disabilities, specifically his service-connected PTSD, the Veteran's functional limitations due to this disability, and in light of his history, education, skill, work experience and training, and with resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he was entitled to an award of a TDIU due to his PTSD alone. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). As the evidence of record shows that the Veteran has been unable to maintain a substantially gainful occupation for more than one year prior to the date of her claim for an increase, a TDIU is warranted effective December 7, 2010. Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, 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.