Citation Nr: 18160473
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 13-17 591
DATE:	December 28, 2018
ORDER
The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.
FINDING OF FACT
Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities render him unable to obtain or maintain substantially gainful employment.
CONCLUSION OF LAW
The criteria for establishing entitlement to TDIU benefits have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had honorable active duty service with the United States Army from February 1968 to December 1970, including service in the Republic of Vietnam for which he earned the Purple Heart, Air Medal with “V” Device, Bronze Star Medal, and Vietnam Service Medal with Four Bronze Service Stars.
In May 2018, the Court of Appeals for Veterans Claims (Court) vacated the Board’s previous denial in September 2017 of entitlement to TDIU.  The Joint Motion for Partial Remand (JMPR) determined that the Board omitted discussion of favorable evidence submitted by the Veteran regarding the severity of his conditions.  Accordingly, the issue returned to the Board for adjudication consistent with the JMPR.
1. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU)
The Veteran contends that his service-connected disabilities render him unable to obtain or maintain substantially gainful employment.
Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.  
Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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).  However, a total rating may nonetheless be granted on an extra-schedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  See 38 C.F.R. § 4.16 (b).
In the present case, the Veteran is service-connected for posttraumatic stress disorder (70 percent) and coronary artery disease (60 percent).  The Veteran’s combined evaluation is 90 percent.  As such, he meets the schedular requirements for TDIU.
Following the May 2018 JMPR, the Veteran’s representative submitted a comprehensive vocational assessment that considered the medical and lay evidence of record.  Following an interview with the Veteran, the vocational consultant determined that it was more likely than not that the Veteran’s service-connected disabilities precluded substantially gainful employment.  
The vocational consultant stated that the Veteran experienced significant psychological and physical limitations attributable to his PTSD and coronary artery disease.  He has experienced only minimal improvement in these symptoms overtime.  He continued to experience flashbacks, anxiety, hypervigilance, severe depression, irritability, sleep disturbance, fatigue, decreased concentration and reduced stamina, which is corroborated by his treatment notes and lay statements.  The vocational consultant disagreed with the VA examiners of record, who believed the Veteran capable of sedentary employment, instead arguing that any full-time position, even sedentary in nature, requires some degree of competence in managing interpersonal relationships.  Instead, the Veteran’s PTSD precluded interpersonal relationships as he endorsed an inability to trust others and exhibited ongoing isolative tendencies, which are also corroborated by his treatment notes and lay statements of record.  The Veteran exhibited frequent irritability and an inclination towards confrontations, which would make him unable to work with others in an occupational setting.  Without this minimum level of appropriate conduct, he would not be able to engage in a typical work environment.  Furthermore, the Veteran’s sleep impairments, as well as physical limitations from coronary artery disease, would hamper his productivity and concentration at work.  The vocational consultant determined that the Veteran would not be able to stay on task, or keep deadlines, as required in an employment setting.  In sum, the combined effect of the Veteran’s PTSD and coronary artery disease precluded substantially gainful employment.
Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds the service-connected disabilities have rendered the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background throughout the period of the claim.
The Board acknowledges that the contrary opinions of record from VA examiners.  Even if the Board were to grant these probative weight comparable to that of the above described private examiner, the evidence would be in equipoise, and the claim would still be warranted.  
In sum, the Board is satisfied that the Veteran’s service-connected disabilities have been sufficiently severe throughout the period of the claim as to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background.  Accordingly, a TDIU is warranted.
 
Evan M. Deichert
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	H. Fisher, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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