Citation Nr: 18145372 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 14-40 858 DATE: October 26, 2018 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities prevented him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1971 to June 1975, from December 1983 to January 1995, and from December 2000 to January 2006. TDIU The Veteran asserts that he has been unable to work because of his service-connected disabilities. Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or 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. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Board determines that TDIU should be granted. As an initial matter, the Board notes that the Veteran meets the schedular requirements for TDIU. Specifically, the Veteran is service-connected for depression (70 percent), sleep apnea (50 percent), and has noncompensable ratings for hypertension with chronic kidney disease, otitis media, bilateral hearing loss, and tinnitus. As such, the Veteran’s combined disability rating is 90 percent during the period on appeal. Next, the evidence demonstrates that the Veteran was unable to obtain or retain substantial gainful employment. In making this determination, the Board places significant probative value on the credible assertions from the Veteran that his service-connected psychiatric disability caused severe irritability, depression, anxiety, memory issues, concentration difficulties, as well as significant limitations from his sleep apnea, that included excessive daytime drowsiness, which all together, prevent him from working, to include performing his prior duties in law enforcement and security. The medical evidence, including the private and VA treatment records reflects that the Veteran’s psychiatric disability causes significant irritability and sleeping difficulties that interfere with his ability to obtain and retain substantial gainful employment. Of note, the Board observes that prior to 2012, the Veteran was enrolled in a VA vocational rehabilitation program that he was not able to complete due to his service-connected disabilities. In fact, the May 2010 and October 2012 VA Vocational Rehabilitation and Employment examiners opined that the Veteran “is not able to work and sustain gainful employment in a competitive job market due to his permanent disabilities.” Moreover, the October 2012 examiner stated that he is not able to “sustain gainfully employment” due to the problems associated with his service-connected depression. Similarly, the December 2011, January 2013, and February 2016 VA examiners determined that the Veterans’ psychiatric symptoms cause occupational impairment with deficiencies in most areas due to symptoms such as depression, anxiety, chronic sleep impairment, flattened affect, neglect of personal appearance and hygiene, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or worklike setting, and inability to establish and maintain effective relationships. In arriving at this conclusion, the Board acknowledges that the negative evidence includes the opinions from the January 2013 examiner who opined that the Veteran’s psychiatric symptoms “alone do not render him 100% unemployable,” as well as the February 2016 VA examiner who stated that a “decrease in activity and interaction with others would be counterproductive” and that “treatment for depression warrants interaction with others through social and occupational activities.” Nevertheless, the Board notes that being “100% unemployable” is not that standard for TDIU, and more importantly, the January 2013 VA examiner specifically declined to address the impact of the Veteran’s other service-connected disabilities. Further, with respect to the February 2016 VA examination, the examiner failed to offer any opinions as to whether or not the Veteran could currently obtain and maintain substantial gainful employment. Therefore, the examiners’ opinions are less probative on this issue. Again, the question in this case is whether the Veteran could secure or follow substantially gainful employment, not whether he was totally precluded from work. As such, the Board finds that the clinical evidence and opinions from the VA Vocational Rehabilitation and Employment examiners, in conjunction with the Veteran’s credible statements, places the question of substantially gainful employment in great doubt, and the Board has resolved all doubt in the Veteran’s favor. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Accordingly, entitlement to TDIU is granted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel