Citation Nr: 1751777 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-45 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to October 1998, January 2001 to July 2002, and from February 2004 to November 2004. This case is before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in Indianapolis, Indiana. The Board took jurisdiction over the issue of entitlement to a TDIU in March 2017. Though the Veteran requested a videoconference Board hearing, he failed to appear for his scheduled hearing on November 25, 2013. The Veteran has not contacted VA and did not show good cause for his failure to appear. Thus, the Board hearing request is deemed to be withdrawn. In March 2017, this issue was remanded to the Agency of Original Jurisdiction (AOJ). There has been substantial compliance with the remand instructions and this matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW Entitlement to a TDIU is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Considering the favorable outcome detailed below as to the grant of entitlement to a TDIU, VA's fulfillment of its duties to notify and assist with respect to the do not need to be addressed. TDIU Legal Criteria and Analysis 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 totally disabled. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate "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." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2017). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran 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, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection is in effect for bipolar disorder, NOS, rated as 70 percent disabling; degenerative arthritis of the right knee, rated as 10 percent disabling; degenerative arthritis of the right ankle, rated as 10 percent disabling; migraine headaches, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and a hearing loss disability of the right ear, rated as 0 percent (noncompensable) disabling. Hence, the threshold percentage requirements for consideration of a TDIU clearly are met. The remaining issue, then, is whether the Veteran's service-connected disabilities render him unable to obtain and retain substantially gainful employment. 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran has not held full time employment since January 2008. He has a few semesters of college education and experience in firefighting, fuel and electrical repair, and security. See May 2008 Application for Increased Compensation Based on Unemployability. In lay statements, he asserts that his bipolar disorder symptoms caused him to have difficulty interacting with people at work, and his right knee and ankle disabilities made it difficult to walk, causing him to leave his most recent employer in January 2008. See September 2008 VA examination. The Veteran has also explained that he left his job in January 2008 because of the declining health of his spouse and the lack of available work. Id. The Veteran has been awarded Social Security Administration (SSA) disability benefits, and was determined to be disabled as of November 2007. The primary diagnosis given on a June 2010 disability determination document is "other and unspecified arthropathies," and the secondary diagnosis is "affective/mood disorders." The Board notes that the definitions and requirements of disability for VA and SSA differ, and a finding of disability by SSA does not bind VA. However, in the present case, such a finding supports the Veteran's claim for TDIU as it is consistent with other evidence of record. Private treatment records from July 2013 through September 2016 reflect that the Veteran was cooperative and very pleasant, showing appropriate mood and affect, as well as judgment. The Veteran was afforded a VA examination to assess the severity of his mental health in September 2016. The Veteran reported isolation and trouble sleeping. He told the examiner that he did not have any social support outside of his spouse because he did not get along well with people. He reported that he attended college from 2014 to 2016, completing 1.5 semesters but stopped attending because he lost interest. He told the examiner that he had minimal mental health treatment from 2014 to 2016. After interviewing the Veteran, the examiner concluded that the combined effects of the Veteran's mental health disorders caused impairment in social and occupational functioning such that the Veteran would lack motivation to seek employment and if he was working he likely would have difficulty maintaining employment. The Veteran was afforded a VA examination in April 2017 to assess the impact of the degenerative arthritis of his right ankle on his employability. The VA examiner concluded that the Veteran would not be able to work in an environment that required climbing or walking on uneven terrain. The Veteran was also afforded a VA examination during this time to assess the impact of the degenerative arthritis of his right knee. The VA examiner concluded that the Veteran was unable to pivot or turn, run or climb ladders. He was not able to stand for longer than ten minutes or walk for over five blocks. The Veteran was unable to perform manual labor. The examiner concluded that all these effects of the Veteran's right knee disability affected his ability to work in a functional environment. The Veteran was also afforded a VA examination in April 2017 to assess the impact of his migraine disability on his employability. The VA examiner concluded that the Veteran was unable to concentrate or focus with more severe headaches. He was also unable to work in settings using fluorescent light, drive with headaches or look at computer screens for prolonged amounts of time. The examiner concluded that the symptoms associated with the Veteran's migraine headaches affected the Veteran's ability to function in an occupational environment. Lastly, the Veteran was afforded a VA examination in May 2017 to assess the impact of his bipolar disorder on his employability. The examiner concluded that the Veteran would be able to perform simple, non-skilled work tasks without extra support or supervision. The examiner determined that the Veteran was managing his bipolar disorder symptoms adequately, however because of the self-reported problems with anger and interpersonal interactions with others, the Veteran would require a work environment that had minimal interactions with people. Upon review, the Board assigns significant probative weight to the opinions of the April 2017and May 2017 VA examiners. The examiners thoroughly examined each of the Veteran's service-connected disabilities and provided sufficient rationale with their conclusions on the impact each of his disabilities would have on employement. According to these VA opinions, the Veteran would be unable to perform manual labor or interact appropriately with others. He would also have difficulty using a computer, reading, or working in an environment with fluorescent lighting for an extended period of time. Collectively, the April 2017 and May 2017 VA opinions suggest that the Veteran would be unable to obtain substantially gainful employment. Resolving the benefit of the doubt in favor of the Veteran, the evidence demonstrates that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation and a TDIU is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to TDIU is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs