Citation Nr: 18156178
Decision Date: 12/07/18	Archive Date: 12/07/18

DOCKET NO. 16-56 128
DATE:	December 7, 2018
ORDER
Entitlement to a total disability rating due to individual unemployability (TDIU) is granted.
FINDING OF FACT
The Veteran’s service-connected disabilities have produced total occupational impairment.
CONCLUSION OF LAW
The criteria for TDIU have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
Entitlement to TDIU.
VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and 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.
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, to qualify for individual unemployability, there must 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.  38 C.F.R. § 4.16(a).
Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).  In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19. 
The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).  Indeed, the focus of the examiner is not on whether a Veteran is unemployable due to his service-connected disabilities, but the functional impairment caused solely by his service-connected disabilities.
The Veteran is service connected for pancreatitis rated 60 percent disabling; diabetic nephropathy rated 60 percent disabling; head scars rated 30 percent disabling; diabetes mellitus rated 20 percent disabling; a traumatic brain injury (TBI) rated 10 percent disabling; noncompensable hypertension; a noncompensable head scar; noncompensable linear scars; and noncompensable migraine and tension headaches.  His combined rating is 90 percent.  The Veteran meets the schedular TDIU and criteria for eligibility under 38 C.F.R. § 4.16(a).
The Veteran contends that he has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities.  He has an associate’s degree and was employed as a military contractor for two years following separation from service in 2010.  See July 2013 VA 21-8940; June 2017 Medical Treatment Record, Non-Government Facility.  He claims that he stopped working in 2012 due to disability.
Granting him the benefit of the doubt, the Board finds that the Veteran is entitled to TDIU.  A May 2017 disability benefits questionnaire (DBQ) completed by the Veteran’s private physician indicates five episodes of severe abdominal pain and one episode of debilitating abdominal pain in the past year attributable to pancreatitis, which require recovery periods and occasional hospitalization.  The Veteran’s migraine disability causes photophobia, nausea, and prostrating attacks of migraine headache pain up to several times a week.  In addition, the Veteran has some memory loss attributable to his TBI which interferes with occupational functioning.  The Board has considered the findings of VA examinations of record and finds them no more or less persuasive than that the May 2017 DBQ. The frequent, disruptive work stoppages caused by the Veteran’s service-connected disabilities would likely preclude him from any form of substantially gainful employment consistent with his education and employment history.  A TDIU is warranted.
 
 MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Alhinnawi, Associate Counsel