Citation Nr: 1752641 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-07 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Stephen Vaughn, Agent ATTORNEY FOR THE BOARD J. Negron, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The claim was brought before the Board in August 2015 and was remanded for further development. FINDING OF FACT The evidence of record does not show the Veteran is unable to obtain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. TDIU The Veteran contends that he is unemployable due to his service-connected major depressive disorder and tinnitus. A total disability rating based upon individual unemployability may be assigned 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. § 4.16 (a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.321 (b), 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). The Veteran already meets the necessary schedular rating criteria under 38 C.F.R. § 4.16(a) as his service-connected depressive disorder has been given a 70 percent disability rating. Additionally, with his service-connected disabilities of tinnitus rated at 10 percent and bilateral hearing loss rated at 0 percent, the combined total rating of his service-connected disabilities is also 70 percent. Therefore, the question at hand is whether his service-connected disabilities keep him from securing substantially gainful employment. After review of the evidence of record, the Board finds they do not. The evidence of record shows that the Veteran finished eleventh grade, but did not graduate from high school or obtain a GED. His occupational history includes working as a press operator and forklift operator, and he attended welding school in 1971. In June 2012, the Veteran was provided a VA examination for his hearing loss and tinnitus. The examiner opined that the Veteran's hearing alone should not be a barrier to a wide range of employment settings. She explained that many individuals with the Veteran's degree of hearing loss functioned well in many occupational settings. The examiner stated the Veteran's hearing disability may only cause him trouble working well in noisy environments and environments that required him to often use non face-to-face communication equipment, or jobs that required a great deal of attention to high-pitched sounds. The examiner further opined that the Veteran's tinnitus might cause an individual difficulty with concentration and interfere with an ability to hear well. However, the Veteran's tinnitus did not preclude him from obtaining or maintaining employment. In March 2016, the Veteran received a VA examination regarding his psychiatric condition. The examiner diagnosed the Veteran with unspecified depressive disorder and alcohol use disorder. The Veteran informed the examiner that he has consistently looked for work. He reported that he had stopped working because "I couldn't hold interest, I couldn't focus," and he and other employees got laid off. The examiner noted the Veteran had occupational and social impairment with reduced reliability and productivity. However, the examiner opined that from a psychiatric standpoint, there was no reason the Veteran would be unable to seek, engage in, or function in an occupational environment. The Board acknowledges that the Veteran has stated that his psychiatric condition has prevented him from finding employment. However, the evidence of record does not show his service-connected disabilities have caused him to be unemployable. The evidence of record shows the Veteran was last employed full-time in September 2006 and last employed part time in early 2010. The Veteran has stated he was fired from his last employment due to poor attendance and a behavior/attitude problem. However, the Board notes that in a September 2011 VA examination, the Veteran reported that he was last employed in March 2010 as a seasonal employee and believed he had not been called to return because of his age. Further, the Veteran attributed his lack of finding a job to his age and lack of education. The Veteran also denied a history of poor interpersonal functioning at work. The record shows the Veteran has been retired since. Therefore, the probative evidence of record shows that the Veteran is capable of performing the acts required in obtaining and maintaining a substantially gainful occupation, especially those with minimal responsibility. The Board further acknowledges the fact that the Veteran has not been employed for the entire period on appeal. Unfortunately, the fact that a veteran is currently not working or may have difficulty finding a job is not determinative in adjudicating a claim for a TDIU rating. As previously stated, the evidence does not show that the Veteran's service-connected psychiatric condition and hearing loss and tinnitus make him incapable of performing the physical and mental acts required by employment in which he has limited interaction with others and/or minimal responsibility. Thus, based on this evidence, the Board concludes that the Veteran has not been rendered unemployable due to his service-connected disabilities. When considering the Veteran's employment and educational background, as well as the medical evidence of record, the Board finds a grant of TDIU is not warranted. ORDER Entitlement to a TDIU is denied ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs