Citation Nr: 18152790 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-47 402 DATE: November 26, 2018 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDING OF FACT The preponderance of the evidence demonstrates that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities throughout the current appeal period. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1987 to April 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 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). 1. Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Disabilities resulting from common etiology or a single accident will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. Id. The Veteran is service connected for major depressive disorder, multiple right knee disabilities, a left knee disability, and a right finger disability. The scheduler criteria described above are met for the entirety of the appeal period. The record shows the Veteran last worked on a full-time basis in July 2013. The Veteran has a four-yea college degree, and most recently worked in an accounting office for Walmart. He also worked as a substitute teacher in the decade before leaving the workforce. A review of the evidence supports the Veteran’s contentions about the debilitating nature of his combined service-connected impairments. A December 2017 VA psychiatric examiner with whom the Veteran met noted the presence of deficiencies in most areas of mental function, along with limited activities of daily living, severe anxiety, depression, and sleep problems. These psychiatric symptoms appear to have been present at similar intensity throughout the appeal period. For instance, a June 2015 examiner noted similar symptomatology to that noted in December 2017, along with limited socialization and psychiatric symptoms related to the Veteran’s diminished physical functioning, largely attributable to his knee problems and inability to use his hands and fingers. (Continued on the next page)   Respecting the latter, the Board has afforded great probative weight to the November 2014 lay statement submitted by KM, a personal assistant hired by the Veteran’s wife to aid in his care. In that statement, the assistant notes that the Veteran suffers frequent falls, is generally incapable of ambulating without assistance, often spills drinks on himself, requires help getting in and out of the shower, and if frequently beset by cognitive symptoms including forgetfulness and confusion. These observations accord with the other evidence of record, and are uncontroverted by the assessments of a treating or examining medical provider.He is beset by substantial psychiatric symptoms, which have been present throughout the appeal period, struggles to ambulate independently, and has trouble manipulating objects with his hands. Thus, the Board finds that the Veteran’s service-connected disabilities have combined to render him incapable of securing of maintaining gainful employment since July 2013, when he left the workforce. Considering the Veteran’s background, it does not appear that he has had the capacity to engage in gainful employment at any point during the appeal period. Entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel