Case 26005043

L. HOWELL · 2026 · Case ID: 26005043

DENIED

Summary

The Veteran, a veteran who served from December 1967 to August 1969, including service in Vietnam, appeals the denial of Total Disability based on Individual Unemployability (TDIU). The Veteran claims unemployability due to service-connected PTSD, diabetes mellitus, tinnitus, GERD, hypertension, neck scars, and hypothyroidism. The Veteran's combined rating is 70%, meeting the schedular criteria for TDIU since June 11, 2024. However, the Board reviewed the medical evidence to determine if the Veteran's service-connected disabilities alone rendered him unemployable prior to that date. Multiple VA examiners opined that while the Veteran experienced occupational and social impairment due to PTSD symptoms like anxiety, depression, and sleep difficulties, these did not rise to the level of total occupational impairment. Specifically, a May 2024 VA clinician opined the Veteran would have no job-related difficulties secondary to PTSD, and a January 2025 VA examiner noted significant difficulty with crowds but ultimately concluded the Veteran could function in an occupational environment with reduced reliability. In contrast, a July 2024 private consultant opined that PTSD and tinnitus rendered the Veteran unemployable since 2005, citing difficulties with focus, concentration, breaks, and team interaction. The Board found the private opinion less persuasive than the VA opinions, which were considered more probative due to their direct assessment of employability and the presence of multiple VA examiners supporting the Veteran's capacity to work. The Board concluded the Veteran's service-connected disabilities did not preclude him from securing and maintaining substantially gainful employment. Therefore, the claim for TDIU was denied.

Special Benefit

TDIU

Docket No.

18-30 949

Full Decision Text

Citation Nr: 26005043
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 18-30 949
DATE: April 29, 2026

ORDER

A total disability rating based on individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran served on active duty from December 1967 to August 1969, including service in the Republic of Vietnam.

2. The Veteran is not unemployable due solely to service-connected disabilities.

CONCLUSION OF LAW

The criteria for a TDIU have not been met. 38 U.S.C. §§ 1110, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2025).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a January 2021 Board hearing and a copy of the transcript is associated with the claims file. In April 2021, the Board denied a rating in excess of 30 percent for a psychiatric disability. The Veteran appealed to the Veterans Claims Court. In March 2022, the Court Clerk granted a joint motion for partial remand (JMPR) and remanded the issue to the Board for readjudication.

In July 2022, the Board again denied the claim for an increased rating. In a November 2023 Memorandum Decision, the Court vacated the July 2022 Board decision and remanded the claim for further adjudication. Following the Memorandum Decision, the agency of original jurisdiction (AOJ) granted a 50 percent rating for posttraumatic stress disorder (PTSD), effective December 26, 2023.

Subsequently, in June 2024, the Board denied the claim for a rating in excess of 30 percent for PTSD prior to December 26, 2023, and a rating in excess of 50 percent for PTSD since December 26, 2023. In February 2025, the Court vacated the decision and granted another JMPR, remanding the claims to the Board for readjudication.

During the course of the appeal for an increased rating for PTSD, the Veteran raised the issue of entitlement to TDIU due to service-connected disabilities. In a July 2025 decision, the Board remanded the issue of entitlement to a TDIU as the Veteran did not meet the schedular criteria. The issue is now ready for adjudication.

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a).

A TDIU may be assigned, if the scheduler 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a).

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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is not currently defined in VA regulations; however, the term has been defined as having two components: one economic and one noneconomic.

The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to
). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is not currently defined in VA regulations; however, the term has been defined as having two components: one economic and one noneconomic.

The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019).

In the December 2023 application for TDIU, the Veteran indicated that he last worked full-time in July 2006. He listed past employment including working for a truck and bus company and a health care company. As to education, he reported that he graduated from high school and completed one year of college. Moreover, he indicated that he stopped working full-time due to mental health disabilities and tinnitus.

As to disabilities during the period on appeal, the Veteran is currently service-connected for PTSD at a 50 percent rating, diabetes mellitus at a 20 percent rating, tinnitus at a 10 percent rating, gastroesophageal reflux disease (GERD) at a 10 percent rating, and hypertension (HTN), neck scars, and hypothyroidism at non-compensable ratings. His total combined rating is 70 percent. As such, he has met the schedular criteria for TDIU since June 11, 2024.

Pursuant to 38 C.F.R. § 4.16(b), VA's policy is "that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." This regulation provides that rating Boards should submit to the Director of Compensation Service (Director), for extraschedular consideration, cases in which veterans are unemployable due to service-connected disabilities but do not meet the schedular standard of 38 C.F.R. § 4.16(a).

In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court held that the Board could not grant entitlement to extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance without first remanding the issue for referral to the Director. In Witkowski v. Collins, 35 Vet. App. 459 (2025), the Court overruled Bowling and held that "the VA appeals system allows the Board to adjudicate extraschedular TDIU in the first instance... Without Bowling, it is now free to do so." The Board will therefore also address TDIU for the period prior to June 11, 2024, even though the Veteran did not meet the schedular standards in 38 C.F.R. § 4.16(a) at that time.

Turning to the medical evidence, as to a psychiatric disability, an October 2016 VA examiner diagnosed other specified trauma and stressor related disorder, alcohol use disorder, and cannabis use disorder. They explained that psychiatric symptoms, including depressed mood, anxiety, chronic sleep impairment, and mild memory loss, were not severe enough to interfere with occupational and social functioning or to require continuous medication.

Further, clinical treatment records throughout 2017 noted that the Veteran was alert and oriented with linear, logical, and organized thought processes. He showed no evidence of delusional thoughts, suicidal or homicidal ideation, or perpetual disturbances. While his mood was sad and affect was tearful, he showed adequate insight and judgment with grossly intact cognition.

In 2018 clinical treatment records, the Veteran reported that the symptoms were getting better, but he was still jumpy and nervous around crowds. He also noted that he was spending more time with his family but was using alcohol and cannabis to self-medicate. In September 2018, a private psychologist noted symptoms including anxiety, depression, poor hygiene, irritability, sleep impairment, and social avoidance.

Next, at a January 2021 Board hearing, the Veteran described symptoms of paranoia, difficulty dealing with crowds, hypervigilance, sleep impairment, depressed mood, anxiety, and panic attacks. He also indicated that he tended to isolate himself and self-medicate which caused problems with
insight and judgment with grossly intact cognition.

Moreover, a March 2024 VA examiner noted psychiatric symptomatology including nightmares, night sweats, hypervigilance, depression, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner concluded that these symptoms of PTSD resulted in occupational and social impairment with reduced reliability and productivity.

In May 2024, a VA clinician provided an addendum opinion regarding the effect of PTSD on the Veteran's ability to function in an occupational environment. Specifically, they opined that the Veteran would have no job related difficulties secondary to service-connected mental health symptoms. Moreover, the clinician remarked that the Veteran would likely be able to perform work in job positions that offered flexibility in location and/or hours.

In support of the claim, a July 2024 private consultant opined that the physical and mental limitations resulting from PTSD and tinnitus rendered the Veteran unable to perform or maintain any significantly gainful employment since he last worked as a home health attendant in 2005.

Specifically, they explained that employers expected workers to sustain focus and attention for at least 2 hours at a time throughout the workday. The consultant indicated that the Veteran would have difficulties focusing and concentrating on work tasks due to PTSD and tinnitus, which would render him unable to stay on task for at least 2 hours at a time per industry standards. They noted that at his previous job, he felt fatigue due to sleep impairment and medication, which caused difficulty with completing work tasks in a timely manner.

Moreover, the private consultant explained that typical workers must attend to work tasks and remain free from distraction or interruption from co-workers, could not work in complete isolation from others, and could not take unscheduled breaks or leave the workstation. They opined that the Veteran's anxiety and panic attacks would cause him to need breaks at work. Further, his irritability and avoidance of others would create difficulties working in a team. The consultant also explained that tinnitus exacerbated his irritability. In sum, she concluded that no employer would tolerate the Veteran's need for excessive breaks or consistent irritability in an occupation.

Next, the private consultant stated that employers typically expected employees to produce a certain, minimal amount of work while on the job, as well as adapt to minimal workplace changes. They explained that the Veteran would often be off-task due to psychiatric symptoms and tinnitus. Specifically, difficulty focusing and difficulty understanding others would make him unable to work at the same pace as his peers or meet employer production expectations. They also discussed his poor personal hygiene, which would not meet the industry standards for a worker.

In sum, the private consultant opined that the Veteran had been unable to secure or follow substantially gainful employment, including unskilled sedentary employment, due to service-connected PTSD and tinnitus since at least 2005.

Next, in January 2025, a VA examiner reported that symptoms of PTSD resulted in occupational and social impairment with reduced reliability and productivity. They explained that these symptoms included depressed mood, anxiety, suspiciousness, panic attacks which occurred weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work relationships, and difficulty adapting to stressful circumstances. The examiner also noted that the Veteran had difficulty trusting others and experienced heightened anxiety around crowds.

Further, as to employment, the January 2025 VA examiner stated that the Veteran had significant difficulty functioning around other people. He also reported that sleep disruption and depressed mood would cause fatigue, lack of motivation, and difficulty concentrating, in addition to mild interference with the ability to attend work regularly. In sum, he found that irritability and other symptoms would interfere significantly with the ability to work.

Next, as to service-connected tinnitus, an October 2016 VA examiner opined that tinnitus did not impact the ordinary conditions of daily life, including the ability to work. Moreover, a June 2024 VA examiner opined that service-connected hypothyroidism, diabetes mellitus (DM), gastroesophageal reflux disease (GERD), a neck scar, and hypertension had no impact on the Veteran's ability to
had significant difficulty functioning around other people. He also reported that sleep disruption and depressed mood would cause fatigue, lack of motivation, and difficulty concentrating, in addition to mild interference with the ability to attend work regularly. In sum, he found that irritability and other symptoms would interfere significantly with the ability to work.

Next, as to service-connected tinnitus, an October 2016 VA examiner opined that tinnitus did not impact the ordinary conditions of daily life, including the ability to work. Moreover, a June 2024 VA examiner opined that service-connected hypothyroidism, diabetes mellitus (DM), gastroesophageal reflux disease (GERD), a neck scar, and hypertension had no impact on the Veteran's ability to work. Further, a May 2025 VA examiner reiterated that hypothyroidism would have no functional impact on employability. In July 2025, another VA examiner found that GERD did not affect the Veteran's occupational functioning.

Based on a review of the evidence, the Board finds that the Veteran is not unemployable due to impairment caused by service-connected disabilities. The medical evidence shows that a psychiatric disability (currently rated at 50 percent) has resulted in functional and occupational impairment due to symptoms including depressed mood, anxiety, chronic sleep impairment, difficulty establishing and maintaining effective relationships, irritability, suspiciousness, and isolating behaviors.

As noted above, the October 2016 VA examiner opined that the Veteran's symptoms were not severe enough to effect occupational or social functioning at that time. While his symptoms have progressed in severity since that time, a March 2024 VA examiner opined that symptoms of PTSD resulted in occupational and social impairment with reduced reliability and productivity, rather than total occupational impairment. In a further May 2024 addendum opinion, the clinician clarified that the Veteran would have no job-related difficulties secondary to service-connected PTSD.

Moreover, while the January 2025 VA examiner noted that the Veteran would have significant difficulty functioning around other people in an employment environment, he did not make a finding of total occupational impairment. Rather, they concluded that symptoms of PTSD resulted in occupational and social impairment with reduced reliability and productivity.

As such, multiple medical professionals have opined that the Veteran was still capable of functioning in an occupational setting despite his psychiatric symptoms. Therefore, this medical evidence weighs strongly against a finding of unemployability due to service-connected disabilities.

While the June 2024 private consultant opined that PTSD and tinnitus rendered the Veteran unemployable, this opinion is not supported by the medical evidence of record. In contrast, multiple VA examiners opined that service-connected disabilities resulted in no restrictions for job activities, including the October 2016 VA examiners for a psychiatric disability and tinnitus. Further, the May 2024 VA examiner opined that the Veteran would have no job-related difficulties due to PTSD. Moreover, to the extent that the January 2025 VA examiner noted impairment in multiple areas, they still concluded that the would be able to function in an occupational environment with reduced reliability and productivity.

While the Veteran has continued to report symptoms of depression, anxiety, sleep impairment, nightmares, social avoidance, and irritability, the Board finds that these symptoms were not sufficient to result in unemployability. As such, he was adequately compensated for the psychiatric symptomatology with the 50 percent rating.

Accordingly, the Board affords more probative value to the VA medical examiners' opinions than the consultant's opinion as the weight of the evidence shows the Veteran was capable of performing work, even if only sedentary or isolated in nature.

While it is beyond the Board's ability to list every potential type of employment for which the Veteran may qualify, such employment could include technical job such as at-home computer work, transcriber, warehouse inventory, or researcher. In addition, the evidence does not show that the Veteran was incapable of physical labor such as filing or reshelving as he is not service connected for any orthopedic disorders.

These positions would have little to no interaction with the public and involve working independently or in smaller internal teams with less social interaction. As noted, the Veteran's age and nonservice-connected disabilities cannot be considered.

Therefore, the weight of the evidence reflects that the Veteran's service-connected disabilities do not preclude him from securing and maintaining substantially gainful employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the AOJ).

The Board has considered the Veteran's lay statements regarding his capacity to work throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a).

Such competent evidence concerning the nature and extent of the Veteran's employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated.

Moreover, as the VA examiners have the requisite medical expertise to render a medical opinion regarding the impact of the Veteran's service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective evidence of unemployability, and the appeal is denied.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

L. HOWELL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Kokolas, Thomas

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.

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