Citation Nr: 18144009 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-19 467A DATE: October 22, 2018 ORDER Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to September 1978. This claim is on appeal from an October 2014 rating decision. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Evidence subsequent to the last RO adjudication has been associated with the claims file. In light of the grant of the Veteran’s claim, remand for initial consideration of the evidence by the RO would serve no useful purpose. Entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular, or an average person in general, to follow a substantially gainful occupation. 38 U.S.C. § 1155, 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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, 529 (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 his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations indicate that when a veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran’s service-connected disabilities are depressive disorder, rated as 70 percent disabling, lumbar spine degenerative disc and joint disease, rated as 20 percent disabling, pes planus, rated as 10 percent disabling, and onychomycosis, rated as 0 percent disabling; the combined service-connected disability rating is 80 percent. Thus, the Veteran has one disability ratable at 40 percent or more and a combined disability rating to 70 percent, and the percentage rating standards are met. The question is now whether the Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. In a February 2013 Application for Increased Compensation Based on Unemployability, the Veteran indicated that he had performed the duties of a custodian since 1986 and had last worked full time in January 2013 as a custodian for the United States Postal Service. The Veteran had two years of college with no additional training. At an April 2014 VA mental disorders examination, the Veteran stated that he frequently had difficulties with co-workers and supervisors and was "written up" many times. He stated that he had a bad temper and got into verbal and physical altercations at work and had been suspended 4-5 times. In an April 2017 VA record, the Veteran indicated that he had problems functioning as a custodian in that he was unable to follow instructions due to memory problems. In an April 2017 letter, a VA physician noted the Veteran's self-reported difficulties in performing his duties in custodial work. Dr. VC noted problems with memory, following instructions, and difficulty interacting with co-workers and supervisors. Dr. VC stated that the Veteran's information suggested that he was not employable in the regular workplace. Although the opinion was not based on a contemporaneous evaluation, Dr. VC noted that she had seen the Veteran on four occasions since October 2016. Further, a November 2017 VA psychiatry note authored by VC did contain a contemporaneous evaluation and noted that the Veteran had symptoms such as limited insight and judgment. Audio and visual hallucinations were also described, and the Veteran's medications included Risperidone. The Board finds that the Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. VC's opinion is based on a personal knowledge of the Veteran's current and past medical history, and is supported by the fact that the Veteran has a serious neurocognitive disorder accompanied by psychotic symptoms. The Veteran has been granted SSA disability benefits based in large part on his service-connected orthopedic disorders (lumbar spine degenerative disc disease and bilateral pes planus). In a July 2018 DBQ a podiatrist stated that the Veteran was unable to bear weight for an extended period of time without pain. Although in a May 2014 addendum to an April 2014 VA mental disorders examination a VA psychologist noted that the Veteran was not unable to obtain and maintain employment, there was no rationale offered, and there was no indication of the type of work that the Veteran would be able to perform, particularly in light of his prior employment experience. The Veteran’s recent employment has consisted mostly as a custodian, and it is clear that his service-connected psychiatric disability and orthopedic disabilities tend to preclude such work. Accordingly, entitlement to a TDIU is warranted. 38 U.S.C. § 5107. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson