Case A26040563

NATHANIEL DOAN · 2026 · Case ID: A26040563

MIXED

Summary

The Veteran, a Veteran who served from July 1986 to January 1990 and again from January 1991 to March 1991, appeals the denial of Total Disability based on Individual Unemployability (TDIU) for specific periods. The appeal concerns entitlement to TDIU from May 23, 2011, to December 31, 2021, and from January 1, 2022, to May 11, 2023. The Veteran is service-connected for PTSD, rated at 70% from May 23, 2011, and later at 100% from October 20, 2023. The Board reviewed the evidence of record up to the February 2025 rating decision. The Veteran's post-service employment history shows frequent job losses due to irritability and violence, with earnings below the poverty threshold in most years during the appeal period, and a Social Security Administration disability declaration. Medical evidence indicates diagnoses including Major Depressive Disorder, Mixed Personality Disorder, PTSD, and Bipolar Disorder with Psychosis, with persistent symptoms like impaired judgment, anxiety, hallucinations, and aggressive behavior. The Board found the Veteran's service-connected psychiatric disability rendered him unable to maintain substantially gainful employment from May 23, 2011, to December 31, 2021, granting TDIU for this period. However, the Board denied TDIU from January 1, 2022, to May 11, 2023, agreeing with the representative that the Veteran was able to maintain substantially gainful employment during this latter period.

Rationale

Service-connected PTSD rated 70% from May 23, 2011.; Veteran's post-service employment history shows frequent job losses due to irritability and violence.; Earnings below poverty threshold in most years during appeal period.; Social Security Administration declared Veteran disabled.; Persistent symptoms of anxiety, impaired judgment, hallucinations, and aggressive behavior.; Found unable to maintain substantially gainful employment consistent with education/work history.

Special Benefit

TDIU

Docket No.

250224-520202

Full Decision Text

Citation Nr: A26040563
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250224-520202
DATE: April 30, 2026

ORDER

Entitlement to a total disability based on individual unemployability (TDIU) is granted from May 23, 2011 to December 31, 2021.

Entitlement to TDIU from January 1, 2022 to May 11, 2023 is denied.

FINDINGS OF FACT

1. The Veteran's service-connected disability rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history from May 23, 2011 to December 31, 2021.

2. The Veteran's service-connected disability did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history from January 1, 2022 to May 11, 2023.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a TDIU from May 23, 2011 to December 31, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

2. The criteria for entitlement to a TDIU from January 1, 2022 to May 11, 2023 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1986 to January 1990 and from January 1991 to March 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2025 by a Department of Veterans Affairs (VA) Regional Office.

In the February 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2025 rating decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the February 2025 rating decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the positive and negative evidence is in approximate balance or nearly equal-which includes but is not limited to equipoise-the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-doubt-rule does not apply. Id. at 781-82.

Entitlement to TDIU prior to May 12, 2023.

The Veteran and his representative contend that he was unable to work due to his service-connected disability prior to May 12, 2023. The Veteran is not seeking TDIU from January 1, 2022 to May 11, 2023, and the Board agrees TDIU is not warranted for that period. See January 2025 Attorney-Representative Statement. As detailed by the representative and supported by the record, the Veteran was unable to maintain substantially gainful employment from the date of service connection until May 11, 2023. For this date under TDIU is currently in effect, the Veteran was able to maintain substantially gainful employment. This attorney-representative's own argument acknowledges this; on this basis, TDIU is not warranted and is denied from January 1, 2022 to May 11, 2023.

Based on the procedural history of this appeal, the period on appeal starts on May 23, 2011, the date service connection for posttraumatic stress disorder (PTSD). This is the only service-connected disability and the Veteran's claim of TDIU was continuously pursued from the date of the issuance of the rating decision that granted service connection for this disability.

To establish
connection until May 11, 2023. For this date under TDIU is currently in effect, the Veteran was able to maintain substantially gainful employment. This attorney-representative's own argument acknowledges this; on this basis, TDIU is not warranted and is denied from January 1, 2022 to May 11, 2023.

To establish entitlement to TDIU, there must be impairment so severe that it is impossible for the Veteran to secure or follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). 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 age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

"Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 3 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. The phrase "employment in a protected environment" is "unambiguous" and means, "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111 (2024).

In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013).

A veteran is eligible for a schedular rating of TDIU if either one service-connected disability is rated at least 60 percent or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 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 disabilities incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4
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 disabilities 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 with a 70 percent disability rating from May 23, 2011 and a 100 percent disability rating from October 20, 2023. Additionally, the Veteran is in receipt of TDIU from May 12, 2023 to October 20, 2023.

As the Veteran meets the schedular criteria for TDIU from May 23, 2011, the question for the Board is whether the Veteran's service-connected disability precluded him from obtaining or engaging in substantially gainful employment from May 23, 2011 to May 11, 2023, the date of the Veteran's current TDIU evaluation. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The Veteran's post-service employment history includes a variety of jobs. See VA Forms 21-4192. He reported he has had between 60 and 70 different jobs, and that he frequently loses jobs due to irritability and sometimes violence at work. See March 2018 VA examination.

During the appeal period, the Veteran has earned below the poverty threshold established by the U.S. Department of Commerce every year except for in 2022. 38 C.F.R. § 4.16(a). See January 2025 report of Veteran's earnings. For five years he did not have any earnings. The Social Security Administration has declared the Veteran disabled.

The medical evidence of record including medical treatment records and VA examination reports reflect various diagnoses throughout the appeal period, to include Major Depressive Disorder, Mixed Personality Disorder, PTSD, and Bipolar Disorder with Psychosis. Throughout the appeal period, the Veteran consistently experienced impaired judgment, disturbances of motivation and mood, anxiety, suspiciousness, lack of pleasure and interest in activities, difficulty concentrating and making decisions, suicidal ideations, auditory hallucinations, daily panic attacks, avoidance behaviors, impaired impulse control, difficulty establishing and maintaining friendships, difficulty in adapting to stressful circumstances, including work or a worklike setting, mild memory loss, recurrent and distressing recollections of traumatic events, intense psychological distress at exposure to cues that resemble an aspect of the traumatic event, sleep disturbances, self-harm, anger, and aggressive/violent behavior. The Veteran has continuously participated in out-patient and in-patient treatment and has been prescribed medication for his symptoms.

The Veteran continuously reported throughout the appeal period that he struggles to hold a job due to anxiety, overwhelming feelings, substance abuse, interpersonal issues, problems with anger, depression, and motivation, fear of being attacked or ambushed, fear of strangers, and difficulty concentrating.

Upon review, the Board affords the Veteran's statements, clinician's opinions, and other medical evidence of record, when considered together, significant probative value. The Board finds that the record shows that the Veteran was precluded from securing or following a substantial gainful occupation due to his service-connected disability from May 23, 2011 until December 31, 2021.

In consideration of the totality of the Veteran's symptomatology and the resulting functional impairment, the Board finds his service-connected psychiatric disability rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history from May 23, 2011 to December 31, 2021. Thus, as the probative evidence of record weighs in favor of the claim, the benefit of the doubt doctrine is not applicable, and the claim for a TDIU rating is granted from May 23, 2011 to December 31, 2021, and is denied from January 1, 2022 to May 11, 2023. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Nathaniel Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Scherba, Heather L.

The Board's decision in this case is binding only with respect to the instant matter decided.

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