Citation Nr: 18149233 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 17-00 935 DATE: November 9, 2018 ORDER Entitlement to a total rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude substantially gainful employment at all times during the pendency of the appeal. CONCLUSION OF LAW The criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from November 1945 to April 1947. In an October 2017 decision issued by a Veterans’ Law Judge other than the undersigned, the Board of Veterans’ Appeal (Board) denied the claim for a TDIU. The Veteran appealed the October 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2018, the Veteran and the Secretary entered into a Joint Motion for Remand (JMR) which vacated and remanded the October 2017 Board decision. This is an unusual situation: Initially, the Board notes that in October 2018 the Veteran and his representative specifically asked that the appeal be remanded for agency of original jurisdiction (AOJ) review of the additional evidence added to the record since the issuance of the November 2016 statement of the case. Simply stated, they did not waive initial review of the additional evidence by the RO. A remand of this case to the RO would delayed the full adjudication of this case significantly. Nonetheless, the Board underwent a comprehensive review of this record, notwithstanding the above request. The undersigned finds that the Veteran is not harmed by the below adjudication of his appeal despite the remand request because the below decision grants him the maximum benefit allowable by law or regulation regarding the only issue before the Board at this time: TDIU. The TDIU Claim The Veteran asserts, in substance, that his service-connected disabilities prevent substantial employment. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service connected orthopedic disorders. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board finds that the Veteran’s service-connected disabilities meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) at this time. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). On his three VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the appellant reported that he last worked full-time in 1991 and part time in 2004. As to his employment history, the Veteran reported that from approximately 1986 to 1991 he worked as an education consultant. The Veteran also reported, in substance, that he had stopped working because of the problems caused by his service-connected cancer. As to his education and training, the Veteran reported that he had 4 years of college and a Ph.D., in education. His DD 214 lists his occupational specialty as construction foreman. Significantly, the Veteran’s work history in education requires him to interact with others and focus on complex tasks as well as interact with students and co-workers. However, the record show that his service-connected basal cell carcinoma and actinic keratosis residuals along with his scars, bilateral hearing loss, and tinnitus adversely impacts his ability to focus on complex designs as well as interact with others in an office setting. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Regarding other possible employment, the Board finds that the Veteran’s lack of experience, as well as his service-connected connected basal cell carcinoma and actinic keratosis residuals as well as his scars, hearing loss, and tinnitus would adversely impact’s his ability to be work in other physically demanding fields because he can neither stand or walk for prolonged periods of time nor work safely with others. See Geib, supra. Given the above, the Board finds the most probative evidence of record shows that the Veteran’s service-connected disabilities would prevent him from securing or following a “substantially gainful” occupation given the collective impact his connected basal cell carcinoma and actinic keratosis, scars, bilateral hearing loss, and tinnitus would have on working in non-physically demanding occupations including in his passed occupation in education. Lastly, the Board finds that his service-connected disabilities would prevent him from securing or following a “substantially gainful” occupation given his work history and the collective impact his connected basal cell carcinoma and actinic keratosis, scars, bilateral hearing loss, and tinnitus would have on safely performing jobs that require manual labor. (Continued on the next page)   The Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render the Veteran incapable of substantial gainful employment. The Board therefore finds that the criteria for a TDIU have been met. 38 C.F.R. § 4.16(a); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel