Citation Nr: 22015686 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 18-38 269 DATE: March 18, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities were not of such severity that she was unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 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 United States Army from August 2004 to May 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. The Veteran contends that she is entitled to a TDIU because her service-connected PTSD causes her to be unemployable. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran is service connected for PTSD, rated at 70 percent from May 18, 2015, and residuals of fracture with internal fixation of right distal humerus, rated at 10 percent from October 31, 2013. The Veteran has a combined disability rating of 70 percent from May 18, 2015. Thus, the schedular criteria for TDIU have been met from May 18,2015. 38 C.F.R. § 4.16(a). In December 2015, the Veteran submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in which she reported that her service-connected PTSD prevented her from securing or following any substantially gainful occupation. The Veteran indicated that she had never engaged in full time employment. She reported working 8 to 14 hours per week as a part-time cashier for Walmart from 2010 to the present. However, she also indicated that she lowered her hours to 4 to 6 hours per week. The Veteran's highest education level was completion of one year of college. An April 2015 VA examination of the Veteran's right shoulder determined that her right shoulder disability did not impact her ability to perform any type of occupational task. An April 2015 VA PTSD examination report indicates a diagnosis for PTSD. It was reported that, for about the past five years, the Veteran has been mainly employed part-time as a cashier for Walmart. The examiner found that the Veteran's level of occupational and social impairment due to her PTSD was best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. A September 2017 VA social work note reported that the Veteran had been hired by Amazon and already completed orientation. The job with Amazon was reported as a full-time position in a November 2017 social work note. A December 2018 email from the Veteran shows she completed 11 credits in the 2018 fall semester and received a 4.0 grade point average. At a June 2020 VA PTSD examination, the Veteran reported that she worked at Walmart for about 10 years beginning in 2006. In September 2017, she began working for Amazon. Although she is still employed with Amazon, at the time of the examination, she was on quarantine for two weeks due to COVID-like symptoms. The Veteran denied suicidal ideation. The examiner found that the Veteran's level of occupational and social impairment due to her PTSD was best summarized as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At the November 2021 Board hearing, the Veteran testified that she was working in a full-time capacity for Amazon. She reported that she last saw a therapist for her PTSD in 2019. According to the Veteran, when she had had "outbursts" at work at Amazon, she was allowed to go to the break room. She reported that she had not been disciplined for her behavior. Following a review of the evidence of record, the Board finds that the collective impact of the Veteran's service-connected disabilities does not preclude her from obtaining or maintaining substantially gainful employment. In support of such finding, the evidence of record shows that the Veteran has been working as a full-time employee of Amazon since November 2017. The Board also assigns great probative value to the April 2015 and June 2020 VA medical examination reports. The April 2015 examiner opined that the Veteran had symptoms resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The June 2020 examiner opined that the Veteran had symptoms resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. An April 2015 VA examination of the Veteran's right shoulder determined that her right shoulder disability did not impact her ability to perform any type of occupational task. For the reasons and bases stated above, the Board finds that the evidence does not show that the severity of the Veteran's service-connected disabilities renders her unable to secure or follow a substantially gainful occupation. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that entitlement to TDIU is not warranted, and the Veteran's claim is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.