Citation Nr: 18158246 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 10-22 620A DATE: December 14, 2018 ORDER Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT 1. For the entirety of the appeal period, the Veteran has one disability rated at 40 percent or more and sufficient additional disability to bring the Veteran’s combined rating to 70 percent or more. 2. The Veteran has not been able to secure substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to total disability rating based on TDIU due to service-connected disabilities has been met. 38 U.S.C. §§ 1110, 1131, 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty in the United States Air Force from February 1986 to February 1990, and in the Army from April 1996 to June 1997. The Veteran also served in the Air Force Reserve from September 2000 to January 2008 with active duty from March 2003 to May 2004. The matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision issued by the Regional Office (RO) of the Department of Veteran Affairs (VA). This case previously appeared before the Board in May 2013 and March 2018. The issue of entitlement to TDIU was not certified for appeal in 2013 or 2018. However, there was evidence of unemployability submitted during the course of the appeal, and whenever this occurs, a claim for entitlement to a total disability rating based on TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, TDIU was considered to be a part of the Veteran’s claim for benefits for the underlying disability. Because the TDIU claim was not adjudicated in the first instance by the RO and the Veteran was not provided notice advising him about what is needed to substantiate a claim for TDIU, the Board remanded the case so that the RO could provide notice and initial adjudication. The RO has substantially complied with the Board’s remand instructions, so the Board may proceed to the merits of the remanded claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Entitlement to total disability rating based on TDIU due to service-connected disabilities Total disability ratings for compensation may be assigned if the schedular rating is less than total, 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. 38 C.F.R. § 4.16(a). Such a rating is referred to as a TDIU. To be considered for assignment of a schedular TDIU the Veteran’s service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) 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. However, to calculate whether the Veteran has a 60 percent rating or 40 percent rating for at least one disability, the following types of disabilities may be combined: (1) disabilities of one or both upper extremities, or of one or both lower extremities; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id. Such disabilities may be combined in accordance with 38 C.F.R. § 4.25, Table I (2016). Here, the Veteran’s service-connected disabilities include: (i) migraines (50 percent); (ii) adjustment disorder, including anxiety and depression (50 percent); (iii) degenerative arthritis of the spine with bilateral spondylosis (40 percent); (iv) lower right extremity radiculopathy associated with degenerative arthritis of the spine with bilateral spondylosis (20 percent); (v) lower left extremity radiculopathy associated with degenerative arthritis of the spine with bilateral spondylosis (20 percent); and (vi) tinnitus (10 percent). The Veteran was assigned a combined rating of 90 percent, and thus, satisfied the criteria set forth in 4.16(a). The next step is to determine whether the Veteran was unemployable due to his service-connected disabilities. 38 C.F.R. §§ 3.340(a)(1), 4.15. 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 sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. §4.16(a). According to evidence of record, the Veteran completed high school and joined the Air Force two years after graduation. After service, the Veteran was employed in jobs involving truck driving, logging, construction, and other jobs involving manual labor. However, the record indicates that the Veteran’s service-connected adjustment disorder, which includes depression and anxiety, has made it difficult for him to maintain employment. In December 2008, the Veteran sought treatment for his depression and anxiety. At that time, it was noted that in 2007, the Veteran was hospitalized for suicidal ideation. Furthermore, the doctor noted that the Veteran wanted to return to work but was worried that the pressure to perform would cause him stress which would in turn worsen his migraines and depression. In March 2010, the Veteran reported that his depression and anxiety made it difficult for him to do his work, take care of things at home, and get along with other people. At his 2012 Board Hearing, the Veteran testified that he started his own logging business because it was “less stressful for him” since he was worried that employers would not tolerate the fact that he had to take days off of work or arrive late because of his migraines or depression. However, there are days where his anxiety would cause him to “leave the woods” early, and, as a result, he was unable to obtain as many loads of wood as he should. When the Veteran’s logging business came to an end, he began a truck driving job but was laid off soon after. The Veteran has several gaps in employment and has been unable to maintain employment. In 2016, the Veteran reported that he quit at least two jobs because he has been continuously thinking of bad things that could happen which caused him stress and anxiety. This, in turn, cause him to feel worthless about not being able to support his family. In 2018, the Veteran reported that he was employed but quit because he could not cope with being away from home and his wife. The Veteran has also reported that he had depressive thoughts which caused him to quit a job, and he quit another job because he kept thinking “the worst” would happen. As previously noted, the Veteran’s employment history included jobs that require him to engage in physical activities. However, the Veteran reported that light, sound, and increased physical activities trigger his migraines, which make it difficult for him to perform his job duties. Based on the Veteran’s educational and occupational history, and the severity of his conditions, the Board finds that the weight of the evidence shows that the Veteran has been unemployable due to service-connected disabilities. For these reasons the Veteran’s claim for TDIU is granted under 38 C.F.R. § 4.16. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B.Y. Nguyen, Law Clerk