Citation Nr: 18160368
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 17-05 409
DATE:	December 27, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.
FINDING OF FACT
The Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. 
CONCLUSION OF LAW
The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from March 1991 to April 1997. 
This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 
Entitlement to a TDIU is granted.
Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).
To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that, permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15.
The Veteran’s combined rating for his service-connected disabilities was 80 percent effective the date of the filing of his claim for TDIU on April 6, 2011.  Service connection is in effect for PTSD rated 70 percent disabling, effective from February 2010; a low back disability rated 20 percent disabling, effective from February 2010; left knee chondromalacia with subluxation rated, rated 10 percent disabling from 1997; post-operative right knee chondromalacia with subluxation rated 10 percent disabling from 1997; as well as for a right small finger disability, degenerative arthritis of the upper and mid dorsal spine, limitation of extension of both knees, and a residual surgical scar of the right knee all rated noncompensable. He has had a single disability rated 60 percent or more since filing his claim, and a combined evaluation of 80 percent effective from 2010.  The Veteran has met the schedular requirements for TDIU. 38 C.F.R. § 4.16 (a). 
In his April 2011 Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked on a full-time basis in 2002 as a clerk at a convenience store. He indicated that he became unable to work due to his PTSD, as well as his back and knee disabilities. The evidence of record further reflects that he worked in law enforcement after separation from service. See VA Treatment Record dated February 7, 2011. The Veteran also co-owned the convenience store, where he worked for 10 years. See Henry County Hospital Treatment Record dated April 10, 2009.
An April 2011 private opinion letter, submitted by Dr. R. E., indicated that the Veteran was unable to work due to his service-connected PTSD. She explained that the prognosis for his psychiatric condition was very poor, as his treatment had been ineffective thus far. Furthermore, she explained that even under ideal conditions with unlimited resources, PTSD was difficult to treat. Thus, she concluded that it was unlikely that the Veteran’s psychological deficits would be restored to the point where he could be gainfully employed.  
Additionally, in May 2011, a VA treatment provider concluded that the Veteran’s employability was poor due to his emotional and physical impairments. See VA Treatment Record dated May 16, 2011.
In December 2011, a VA examiner opined that the Veteran’s service-connected hand, knee, and back disabilities would hinder his ability to perform in a physical occupational setting. Specifically, he would be unable to bend, crawl, kneel, squat, climb stairs, or lift heavy objects. He would also be unable to stand or walk for prolonged periods of time, or use hand tools requiring prolonged grip strength. 
A December 2015 VA examiner concluded that the Veteran would be unable to perform any occupational task that he could not complete from his mobility scooter due to his knee disabilities. The examiner further stated that the Veteran’s low back disability prevented him from sitting in a chair or using the bathroom while at work. Ultimately, the examiner opined that he would not be able to work in a physical occupational setting due to his back and knee disabilities, as a result of pain and limited range of motion. Although he could perform a sedentary occupation, the Veteran experienced difficulty traveling to and from his home. 
Additionally, in December 2015, another VA examiner concluded that the Veteran’s PTSD symptomatology resulted in significant impairment in occupational functioning. A previous psychological evaluation documented his reports of violent episodes while working at the convenience store. See VA Examination Report dated May 2010. 
The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350 (2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10; Floor v. Shinseki, 26 Vet. App. 376, 381 (2013). 


Based on the evidence of record, the Board finds that it is at least as likely as not the Veteran is unemployable due to his service-connected disabilities. As noted above, he meets the schedular requirements, he has been unemployed throughout the pendency of this appeal, and his PTSD and physical disabilities have since been shown to be severe enough to preclude employment.
 
 MICHAEL E. KILCOYNE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Erin J. Trojanowski, Associate Counsel 

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