Citation Nr: 1802173 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-23 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD Monica Dermarkar, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1996 to August 1996, January 2000 to July 2000, and from December 2000 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran presented testimony at a Video Conference Board hearing in February 2017, before the undersigned Veterans Law Judge. The transcript is of record. FINDING OF FACT Since April 12, 2011, the date of claim, the schedular criteria for TDIU were met and the Veteran's combined service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Since the Board is granting the Veteran's claim for TDIU, there is no need to discuss whether the Veteran has received sufficient notice with regard to this claim, given that any error would be harmless. II. TDIU TDIU may be assigned, 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 disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Currently, the Veteran is service connected for sleep apnea, which has been rated as 50 percent disabling from April 12, 2011; migraine headaches, rated as 30 percent disabling from January 24, 2008 and 50 percent disabling from April 12, 2011; anxiety disorder and major depressive disorder with panic disorder without agoraphobia, rated as 30 percent disabling from January 24, 2008 and 50 percent disabling from April 12, 2011; chronic lumbar strain with degenerative joint disease, rated as 10 percent disabling from January 24, 2008; patellofemoral pain right knee, status post surgery for medial meniscus surgery as well as medial plica and anterior fat pad fibrosis, rated as 10 percent disabling from April 12, 2011; and right knee scar, status post medial meniscus surgery, rated as zero percent disabling. The Veteran has a combined rating of 90 percent from April 12, 2011, with one disability rated as more than 40 percent disabling. As such, the threshold percentage requirements for TDIU as set forth under 38 C.F.R. § 4.16(a) has been met as of April 12, 2011. The remaining question concerns whether, in the judgment of the rating agency, the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that the Veteran is incapable "of performing the physical and mental acts required" to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is "whether the [V]eteran's service connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran testified that since his release from active duty, he has not had any type of employment. See Board hearing transcript at 3. The Veteran stated that he has gone to school several times but his migraines, depression, and panic issues were causing him to miss class which led him to ultimately drop out of his courses. The Veteran's spouse testified that the Veteran's medication used to treat his anxiety, depression, and migraines, cause the Veteran to have a lot of memory problems which cause the Veteran to struggle with remembering specifics for his class. The Veteran's DD Form 214 reveals that the Veteran's MOS was unit supply specialist. The Veteran's Social Security disability records show that the Veteran was declined entitlement to Social Security disability compensation because there was not sufficient vocational information to determine whether the Veteran could perform his past relevant work. The Veteran was afforded a VA examination in May 2012 for his back disability. The examiner opined that the Veteran's back condition impacts his ability to work. The examiner stated that if prolonged sitting or prolonged standing is required, then an increase in pain would be expected. The Veteran was afforded a VA examination in May 2012 for his migraines and the examiner opined that the Veteran's headache condition impacts his ability to work. The examiner noted that the Veteran would need sedentary work since activity aggravates the Veteran's headaches. The Veteran was afforded a general medical VA examination in June 2012. The examiner opined that with reasonable accommodations, the Veteran's service connected disabilities would not limit sedentary employment. The examiner expressed that sedentary employment in a loosely supervised situation, or employment requiring little interaction with the public would be feasible. The Veteran was afforded a VA examination in June 2012 for his mental health condition. The examiner opined that the Veteran does not qualify at this time for individual unemployablity due to anxiety disorder, NOS, depression, or other psychiatric factors. The examiner noted that the Veteran appears capable of competitive fulltime employment requiring little interaction with the general public. The Veteran's Motorcycle Mechanics Institute (MMI) attendance record reveals that the Veteran's total hours absent was approximately 224 hours. The Board notes that the question of employability is ultimately one for the finder of fact, and is not medical in nature. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). After a review of all the lay and medical evidence, the Board finds that the evidence is in equipoise as to whether the Veteran's service-connected disabilities have rendered the Veteran unable to secure or follow substantially gainful employment. Evidence weighing in favor of a finding of unemployability include the Veteran's testimony that his migraines, depression, and panic issues were causing him to miss class which ultimately led to him dropping out of his courses; his attendance record from MMI showing that the Veteran was absent for approximately 224 hours; his May 2012 VA spine examination indicating that prolonged sitting or prolonged standing would cause an increase in pain; and his June 2012 VA examination indicating that the Veteran's would need sedentary work with little interaction with the general public. The Board acknowledges the difficulties the Veteran's service connected disabilities would pose in a sedentary position and the adverse effects it would have on performing the physical and mental acts required to be employed. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted under 38 C.F.R. § 4.16(a) from April 12, 2011. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to TDIU is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs