Citation Nr: 18155054 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-14 318 DATE: December 4, 2018 ORDER Entitlement to total disability rating due to individual unemployability (TDIU) is granted subject to the regulations governing the payment of monetary awards. FINDING OF FACT The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from September 1975 to November 1987, and active service in the U.S. Army from July 2002 to January 2004. 1. Entitlement to a TDIU 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’s current combined schedular rating is 90 percent. He has at least one disability rated at 40 percent or higher. Accordingly, he meets the schedular criteria for a TDIU analysis. In his application, the Veteran reported that following his separation in 2004, he was self-employed in sales, until he became unable to work due to his service-connected disabilities. An education benefits application of record states that the Veteran previously held a real estate salesperson license in North Carolina. In December 2012, he reported during a VA mental health assessment that he had been attending classes in hotel and restaurant management since 2010. In July 2014, the Veteran reported to VA treatment staff that he would complete a business degree from Keiser University in September 2014. The Board notes that the Social Security Administration (SSA) determined that he was unable to work due to the physical limitations of his service-connected conditions of the upper extremities and cervical spine as of March 1, 2009. SSA determinations, while relevant, are non-binding on the Board. Martin v. Brown, 4 Vet. App. 136, 140 (1993). A September 2010 mental health assessment and opinion of record states that when taking all data into account, it is more likely than not, that due to his service connected physical conditions and his noted depression, that the Veteran could not retain and maintain occupational success. The Board remanded this matter in October 2015, determining that the medical evidence of record was incomplete, and that the medical opinions of record at that time were not comprehensive in their analysis of the impact or all of his service-connected disabilities, particularly his physical limitations, on his ability to work and his overall employability. In accordance with that Remand, the Veteran was afforded separate examinations as follows. On VA mental health examination in June 2016, the examiner found that given the Veteran’s insomnia, fatigue, and anhedonia associated with his service-connected condition of depression, he could not work in a position requiring early morning work hours. Due to the Veteran’s low frustration tolerance and irritability with others, he would have difficulty serving in any position requiring frequent or prolonged contact with the general public. He would also need to work in a flexible environment where he could leave for short periods of time to calm his nerves as necessary. On VA examination for the spine in June 2016, the examiner found that the Veteran’s degenerative joint disease, degenerative disc disease and spinal stenosis of the cervical spine, bilateral radiculopathy and left shoulder injury with residual pain and limited motion could prevent the Veteran from performing lifting, carrying, pushing, pulling, overhead activities, and climbing such as might be required on physical employment. The examiner further stated that these conditions could prevent the Veteran from working in a stationary job that required prolonged sitting or filing. On VA examination for the Veteran’s left ankle, the examiner found that his achilles tendon repair, residual pain, limited motion, and scar could prevent the Veteran from performing lifting, carrying, pushing, pulling, prolonged standing and walking, climbing, or stooping such as might be required in a physical occupation, but he might be able to perform clerical tasks or more stationary employment. In light of the Veteran’s physical limitations of left ankle, cervical spine and upper extremities, it is clear the Veteran could not work in a physically demanding occupation. Turning to his ability to work in a non-physically active position, the Veteran’s education and work experience in sales suggests that he could work in a similarly situated field involving business or sales. However, given the limitations of his mental health condition of not being able to work in the morning, needing to be away from the public, and needing to be permitted frequent and flexible breaks to deal with his stress, it becomes clear that such limitations render the Veteran unemployable. The Board finds that the evidence of record supports a finding of entitlement to TDIU. The Veteran meets the schedular criteria for a TDIU rating. See 38 C.F.R. § 4.16(a). Further, based on the evidence of record, the Board finds that the overall evidence is persuasive that he is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. The Veteran is limited physically and psychologically to the point that gainful employment is not possible. Entitlement to a TDIU is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel