Citation Nr: 18157986 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-36 977 DATE: December 14, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to a service-connected anxiety disorder alone (TDIU) is granted. FINDING OF FACT The manifestations of the Veteran’s service-connected anxiety disorder are sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU based upon a service-connected anxiety disorder alone 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 on active duty from March 1970 to October 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, granted entitlement to service connection for an anxiety disorder, rating it as 30 percent disabling effective June 15, 2012. During the pendency of the appeal, this rating was increased to 70 percent, effective June 15, 2012. The Veteran, by and through his representative, has asserted that his anxiety disorder renders him unemployable. See October 2018 Appellant’s Brief. As such, the issue of entitlement to a TDIU is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (VA must address the issue of entitlement to a total disability rating based on individual unemployability in increased-rating claims when the issue of unemployability is raised by the record). The Board notes that the Veteran filed a TDIU application form (VA Form 21-8940) in September 2018. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a TDIU due to a service-connected anxiety disorder alone is granted. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran maintains that his service-connected anxiety disorder has precluded him from obtaining and maintaining gainful employment. See October 2018 Appellant’s Brief. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. The Veteran is in receipt of a 70 percent rating for his anxiety disorder, which is sufficient to avail him of schedular TDIU under 38 C.F.R. § 4.16(a). The only remaining consideration, then, is whether his service-connected anxiety disorder renders him unable to obtain and maintain substantially gainful employment. In support of his claim, the Veteran submitted an October 2018 psychiatric evaluation. Following a July 2018 interview and assessment, the examiner opined that the Veteran’s anxiety disorder renders him unemployable. In support of his opinion, the examiner rationalized that the manifestations of the Veteran’s anxiety disorder, mainly his inappropriate anger and intrusive thought of violence towards other people, render him incapable of working in an employed environment. Additionally, the examiner noted the Veteran struggles with basic day to day interaction, and stated that there is no modern workplace that would tolerate an individual with these types of behaviors. See October 2018 Psychiatric Evaluation. In light of the evidence reflecting that the Veteran is unable to sustain work relationships due to his service-connected anxiety disorder and the impact of his anxiety disorder symptomatology makes him unemployable, and in the absence of any evidence that directly contradicts this conclusion, the Board finds that, resolving reasonable doubt in the Veteran’s favor, entitlement to a TDIU due to his anxiety disorder alone is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s attorney requested that the Veteran be awarded “a total rating (100 percent or TDIU) for anxiety disorder from June 15, 2012 onward.” See Written Statement, dated October 18, 2018. As the attorney’s statement reflects that the Veteran’s appeal would be satisfied by either the assignment of a TDIU based upon his anxiety disorder alone or the assignment of a 100 percent schedular rating under the pertinent diagnostic code, the Board need not also address whether a 100 percent schedular rating is warranted for the Veteran’s service-connected anxiety disorder under Diagnostic Code 9413. See 38 C.F.R. § 4.130, Diagnostic Code 9413. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel