Citation Nr: 21049409 Decision Date: 08/12/21 Archive Date: 08/12/21 DOCKET NO. 16-35 427A DATE: August 12, 2021 ORDER Entitlement to a TDIU is granted from December 29, 2011. FINDING OF FACT The Veteran meets the schedular criteria for TDIU from December 29, 2011. His service-connected disabilities rendered him unable to follow a substantially gainful occupation throughout the period from December 29, 2011. CONCLUSION OF LAW The criteria for the award of a TDIU are met from December 29, 2011. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), (b), 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1970 to March 1972 and from January 1974 to December 1975. In an April 2020 decision, the Board granted a 70 percent rating for PTSD. In January 2021, the Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand. The Joint Motion found that the issue of entitlement to TDIU was part and parcel of the Veteran's claim for an increased rating for PTSD. The Court dismissed the appeal as to a rating in excess of 70 percent for PTSD. The appeal was remanded to the Board for consideration of entitlement to TDIU. 1. Entitlement to a TDIU The Veteran contends that he is unable to work due to his service-connected PTSD. He contends that he cannot hold a job because his mental and physical problems lead to absenteeism. See May 2012 statement. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Court of Appeals for Veterans Claims (Court) recently held that if the Board basis its denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). The Veteran's service-connected disabilities include PTSD (70 percent from December 29, 2011); tinnitus (10 percent from December 11, 1975); and bilateral sensorineural hearing loss (0 percent from December 11, 1975). The Veteran has met the percentage criteria of § 4.16(a) from December 29, 2011. In December 2011, the Veteran submitted a claim for service connection for PTSD and entitlement to TDIU. In his TDIU claim, the Veteran stated that he missed a lot of work due to mental stress, anxiety, and depression. A September 2012 rating decision granted service connection for PTSD and assigned a 50 percent rating. The Veteran appealed the initial rating assigned for PTSD. His TDIU claim is part and parcel of his claim for a higher initial rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the reasons that follow, the Board finds that a TDIU is warranted. The evidence shows that the Veteran last worked in 2003. In his December 2011 TDIU claim, he reported that he was last employed full-time in June 2003 as a cook. He reported a history of work as a cashier, cook, warehouse supervisor, and at a lumber company. He indicated that he stopped working due to his mental health disorder, hearing loss, and tinnitus. In the "remarks" section, he noted, "missed a lot of work due to mental stress, anxiety and depression. Not able to do physical parts of job, lifting, bending, etc." In a May 2012 statement, the Veteran reported that he cannot hold a regular job because his mental and physical problems lead to excessive absenteeism. An August 2012 VA mental health examination reflects that the Veteran reported that he performed dock work from 1975 to 1982 and had several jobs after that. He reported difficulty holding jobs. His last employment was in 2003. He reported that he stopped working due to his mental health symptoms. The examination noted difficulty adapting to stressful circumstances, including work or a work-like setting. The August 2012 examiner opined that the Veteran is capable to perform work from a mental health point of view if he chooses. The examiner opined that the Veteran would be able to perform simple repetitive work in a structured environment. The examiner noted that the Veteran's supervisors would need to be aware of his mental health issues. In August 2014, a VA examiner opined that the Veteran's symptoms negatively impact his performance but do not preclude his ability to work in any capacity. The examiner indicated that the opinion was based on the Veteran's statements, the record, and his work history. An October 2019 VA examination noted that the Veteran's PTSD symptoms include difficulty adapting to stressful circumstances, including work or a work-like setting. The examination noted that the Veteran last worked in 2003 for a barbecue restaurant where he was stocking the walk-in refrigerator on a part-time basis and doing other tasks to maintain the facility. He missed several days a month when he was too stressed to go to work. One day he became angry and was throwing the French fries, which resulted in him being taken off the schedule for a day. When he returned, he had been fired. The Veteran indicated that he had not tried to obtain employment since that time because his PTSD would cause too much stress, and he would miss too many days to work regularly. A December 2019 addendum reflects that the examiner opined that, "the claimant is capable of performing slightly detailed/ complex tasks and should not be relegated to simple/ repetitive work assignments. He should be capable of regular attendance in the workplace and performing work activities on a consistent, though probably slower than average, basis." The examiner then noted that, "Stress tolerance appears to be limited and is likely inadequate for handling the stressors encountered in many work environments." Given the foregoing, the Veteran's service-connected PTSD precludes him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. While the VA examiners of record have found that the Veteran is able to work in some capacity, the Board finds that the overall evidence shows that the Veteran would require work in a protected environment due to his stress tolerance. The August 2012 VA medical opinion that he can work in a structured environment with repetitive tasks and that his employers would need to be aware of his mental health issues supports his ability to perform employment in a protected environment. The December 2019 medical opinion similarly reflects that the Veteran could work in activities on a slower than average basis. This would also be work in a protected environment, as working on activities on a slower than average basis is not a practical limitation of gainful employment. Employment in a protected environment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Accordingly, a TDIU is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.