Citation Nr: 18156315 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 09-02 012 DATE: December 7, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted, effective from November 20, 2017, but not earlier, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT Effective from November 20, 2017, but not earlier, the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW Effective from November 20, 2017, but not earlier, the criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy with active duty from August 2001 to September 2006. The Veteran was afforded a travel board hearing before the undersigned Veterans Law Judge in April 2012. A transcript of that hearing has been associated with the record. This claim was most recently before the Board in July 2017, at which time it was remanded for further development. As the July 2017 remand directives have been substantially complied with, the appeal has returned to the Board for further appellate action. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities Total disability ratings for VA compensation purposes may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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. 38 C.F.R. § 4.16(a). However, if the percentage ratings of 38 C.F.R. § 4.16(a) are not met but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, an “extraschedular TDIU” may be assigned and the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. 38 C.F.R. § 4.16(b). In determining entitlement to a TDIU, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by his employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background, but not age. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The Veteran and his representative assert that the Veteran is unable to secure ot follow substantially gainful employment as a result of his service-connected disabilities. In the Veteran’s formal claim for TDIU, filed in October 2018, he asserts that he became too disabled to work in November 2017. Upon the Veteran’s discharge from active duty service in September 2006, he worked on and off in various positions, both part time and full time, until November 2017, at which point he was terminated from his job. Despite searching for employment as a repair technician since November 2017, the Veteran has not been employed since then. During this time, the Veteran worked mostly in labor-related positions until being trained as technician in 2015. Beginning September 11, 2006, through November 24, 2007, the Veteran’s service-connected disabilities were as follows: residuals, status post right ankle fracture at 10 percent, tinnitus at 10 percent, hypertension at 10 percent, and migraine headaches at 30 percent. During this time, the Veteran’s combined disability rating was 50 percent, which does not meet the schedular requirements for TDIU. The evidence of record for this period of time does not indicate that the Veteran was unable to secure or follow substantially gainful employment by reason of his then service-connected disabilities and therefore, referral for extraschedular consideration is not warranted. Beginning November 24, 2007, until June 1, 2016, the Veteran’s service-connected disabilities were as follows: posttraumatic stress disorder (PTSD) at 50 percent, residuals, status post right ankle fracture at 10 percent, tinnitus at 10 percent, hypertension at 10 percent, and migraine headaches at 30 percent. During this time, the Veteran’s combined disability rating was 80 percent, meeting the schedular criteria for TDIU. However, during this time, the Veteran was working for a majority of the time in fields that were appropriate for his educational and previous work history. Beginning June 1, 2016, the Veteran’s service-connected PTSD was increased to 70 percent, resulting in a combined disability rating of 90 percent. The Veteran has since been service-connected for sleep apnea at 50 percent disabling beginning in December 2017 and while his migraine headaches were reduced to 10 percent disabling at that time, the Veteran still maintained a combined disability rating of 90 percent. However, as noted previously, the Veteran has indicated that he continued to be gainfully employed until November 20, 2017. In August 2017, a VA examiner opined that the Veteran’s PTSD symptoms would affect, but not preclude, his ability to understand instructions, follow directions, and interact with co-workers. The examiner further stated that the Veteran was “accountable and able to handle the responsibilities associated with gainful employment except for intermittent periods of time due to stress.” See, August 2017 VA examination. In December 2017, a VA examiner noted that the Veteran has headaches that require him to isolate from others, noises, and lights. The Veteran also reports headaches associated with his high blood pressure. See, December 2017 VA examination. It was also noted that the Veteran’s sleep apnea results in fatigue and hypersolmence, as he is unable to sleep through the night. Further, the VA examiner noted that the Veteran is unable to climb ladders as required in his previous position as a repair technician and that he has previous been fired from jobs that have required prolonged standing. Id. The Veteran was fired from his job as repair technician in November 2017. The Veteran submitted a statement in which he outlined the reasons for his termination in which the Veteran stated that the stress of having a full-time job was too overwhelming for him, causing him to suffer panic attacks on the job almost daily. He further stated that he became hostile if he was reprimanded or redirected by a supervisor and that he had trouble concentrating and staying focused. Further, the Veteran the stated that his migraines were occurring once or twice per week and when he suffered a migraine, he would need to find a quiet place to rest for a period of time, which would significantly impact his work performance or require him to leave work early. See, VA Form 21-8940 dated August 2018. Accordingly, based on the above, the Board finds that the Veteran has been unable to secure or follow substantially gainful employment as a result of the impact of his service-connected disabilities since November 2o, 2017, and that therefore, the criteria for a total disability rating based on individual unemployability due to service-connected disability have been met, but only from November 20, 2017. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel