Citation Nr: 18149936 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-31 948 DATE: November 14, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted. FINDING OF FACT The Veteran meets the schedular requirement for TDIU, and his service-connected disabilities render him unemployable. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army National Guard from July 1989 to November 1989 and the United States Army from August 1990 to January 1992. This matter comes before the Board from an March 2013 rating decision. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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(a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran contends that he is unemployable due to his service connected major depressive disorder. He is in receipt of a 70 percent rating for major depressive disorder. He is thereby shown to have met the schedular criteria for a TDIU for the entire appeal period. The record indicates that the Veteran attended college but did not obtain a degree. He possesses a three-year certificate from the Pentecostal Church. He last worked in 2014. Prior to 2014 he assisted his wife (now ex-wife) managing her rental properties and then he worked as a caregiver, but quit after a couple of months because it was too stressful. The Veteran’s current income is from his VA benefits. The Veteran was afforded VA examinations in February 2016 and December 2016. Both examiners opined that the Veteran could work in very specific work environments. The February 2016 examiner opined that the Veteran would be capable of working in isolation and without time pressures. The December 2016 examiner opined that the Veteran would likely suffer from absenteeism due to his depression and would not be able to work in a time schedule environment. Additionally, the examiner agreed that the Veteran would be best working in isolation as he is vulnerable to irritability due to his depression. Given the Veteran’s work history, his limited education, and his lack of success in maintain in situations that mirrored those described by the examiners, the Board finds that it would be very difficult for the Veteran to find and maintain substantially gainful employment under these restrictions. The Board finds the evidence is persuasive that the Veteran is not capable of substantially gainful employment due to his service-connected disabilities. The Board finds that overall the evidence demonstrates that his service-connected disabilities preclude gainful employment. Entitlement to a TDIU is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Rekowski, Associate Counsel