Citation Nr: 18142716 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-32 255 DATE: October 16, 2018 ORDER Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disability has rendered her unemployable or unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1983 to June 1987. This appeal is before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. Entitlement to a TDIU The Veteran seeks a TDIU. She contends that her service-connected disability renders her unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” VA Adjudication Procedure Manual, Part IV.ii.2.F.24.d. It also has been defined as “an occupation that provides an 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.” Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (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 injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where the veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service (“Director”) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran is service connection for posttraumatic stress disorder (PTSD), depressive disorder, and polysubstance dependence in remission, for which she is in receipt of a 70 percent evaluation for the entirety of the appeal period. She is therefore eligible for a schedular TDIU under 38 C.F.R. § 4.16(a). In her April 2013 application for a TDIU, the Veteran reported that she became too disabled to work in February 2011 due to her mental health problems. Prior to then she had worked as a part time GED instructor. A subsequent January 2015 application stated that unemployability began in September 2011. At her June 2013 VA mental health examination, the examiner found that the Veteran’s mental health disability affected her employment. The examiner explained that difficulty with concentration, increased hypervigilance, suspiciousness, and irritability would impact her ability to follow instructions, while irritability, loss of interest, and detachment from others would impact interpersonal processes need for effective job completion. In an August 2014 decision, the Social Security Administration awarded disability benefits effective April 1, 2012, the date the Veteran filed her claim for Social Security benefits. The decision found that she was disabled due to the severe impairments of residuals of a right tibial plateau fracture, degenerative disc disease, rotator cuff repair residuals, and a mental health impairment variously diagnosed. The Veteran has submitted a September 2015 private vocational assessment based on a review of the claims file. The evaluator opined that within a high degree of certainty, the Veteran has been unable to secure, follow, or maintain a substantially gainful occupation as a result of her service-connected disability. The evaluator explicitly stated that the degree of certainty was much higher than that required by the equipoise standard. This opinion was based on the severity of the Veteran’s symptoms requiring frequent absences, excessive breaks, and other accommodations to an extent that would not be tolerated by an employer in a competitive market. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disability renders her unemployable or unable to secure and follow a substantially gainful occupation. The September 2015 vocational evaluator provided a detailed and credible opinion explaining why the Veteran’s mental health disability prevents her from engaging in any level of employment without unrealistic accommodation. There is no evidence in the record to directly contradict the evaluator’s opinion. Indeed, the opinion is supported by the findings in the August 2014 decision by the Social Security Administration grating disability benefits. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disability renders her unemployable or unable to secure and follow a substantially gainful occupation. A TDIU is therefore granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Gallagher, Counsel