Citation Nr: 18159408 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 07-13 517A DATE: December 19, 2018 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) from July 20, 2012 is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a TDIU prior to July 20, 2012 is remanded. FINDING OF FACT From July 20, 2012, due to his service-connected left hernia disability and major depressive disorder with anxiety disorder, the Veteran is unable to obtain or retain substantially gainful employment. CONCLUSION OF LAW From July 20, 2012, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1954 to March 1958. This matter is originally on appeal from a February 2005 decision. The February 2005 rating decision denied the Veteran’s claim of entitlement to a compensable rating for post-operative residuals of a left inguinal herniorrhaphy. In January 2010, the Board denied a compensable rating for the Veteran’s service-connected hernia disability and granted a separate 10 percent rating for a residual scar from the hernia surgery. The Board also determined that the issue of entitlement to a TDIU was raised by the record and remanded the issue for further development. Rice v. Shinseki, 22 Vet. App. 447 (2009). In October 2010, the Board denied the Veteran’s claim of entitlement to a TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2011 Order, the Court granted a Partial Joint Motion for Remand (Joint Motion) and remanded the matter for readjudication in accordance with its instructions. In July 2012, the Board remanded the claim for TDIU and the claim was denied by the Board in February 2015. The Veteran appealed this denial to the Court, and in June 2016, the Court issued a Memorandum Decision setting aside the Board’s February 2015 decision and remanding the matter back to the Board for readjudication. The matter was remanded by the Board in March 2017 for further development. Also in March 2017, the Board remanded a claim for an increased rating for bilateral hearing loss for the issuance of a statement of the case (SOC). An SOC was issued in January 2018, and the Veteran perfected his appeal by filing a VA Form 9 in February 2018. This issue, however, will not be currently addressed as the Veteran has requested a videoconference hearing on this issue. TDIU from July 20, 2012 A TDIU rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for TDIU, neither the veteran’s nonservice-connected disabilities nor his advancing age may be considered. 38 C.F.R. § 4.19. It is necessary that the record reflect some factor that places the veteran in a different category than other veterans with equal disability ratings. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the 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 determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Board notes that as of July 20, 2012, the Veteran meets the percentage requirement for consideration for TDIU. 38 C.F.R. § 4.16(a). The Veteran was service-connected for major depressive disorder with anxiety disorder at 70 percent, bilateral hearing loss at 10 percent prior to June 10, 2016 and 20 percent thereafter, residual scar associated with left herniorrhaphy at 10 percent, tinnitus at 10 percent, and left herniorrhaphy at 0 percent. The combined rating is 80 percent as of July 20, 2012. In his February 2010 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked full-time and became too disabled to work in August 1973. At that time, he worked as a letter carrier. He also indicated that he was self-employed as a minister from 1973 to the present, working 20 to 25 hours a week. He completed two years of high school, and received training as a mechanic for one year, from 1954 to 1955. Subsequent VA treatment records note that the Veteran eventually received his GED. Private treatment records from Hill Crest Behavioral Services from July 2012 note that the Veteran worked as a preacher, but felt paranoid in public speaking. During an August 2012 VA mental disorders examination, it was noted that the Veteran was employed as a minister until early 2012. He had conflicts with the church, and physical problems, including recurrent hernia, contributed to feelings of constant anxiety and episodes of depression. The examiner stated that the Veteran could “probably” function adequately in employment situations where he was his own boss, worked alone, and was not subject to oversight or correction by another individual. The examiner stated that symptoms of anxiety and depression do not render the Veteran unable to secure or maintain substantially gainful employment of a physical or sedentary nature. The Veteran indicated he did not feel he was able to work and did not have confidence. He indicated he could work in the yard and cut grass but not for 8 hours. He indicated that he resigned from the church two weeks ago due to conflicts he could not handle. The Veteran’s symptoms included depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. An August 2012 VA hernias examiner found that the Veteran’s service-connected left inguinal hernia would only prevent employment of a physical nature due to weight-lifting restrictions needed for this condition. VA treatment records from October 2013 note that the Veteran was feeling more depressed and wanted to quit all ministerial duties. In November 2013, it was noted that pastoring caused him a great deal of stress and was contributing a great deal to his depression and anxiety symptoms. In May 2016, it was indicated that the Veteran was a part-time minister and was the “fill-in” minister. He had thoughts telling him that he was no good and should quit the ministry. It was also noted in May 2016 and June 2016 that he did not receive a salary. A July 2017 VA mental disorders examiner indicated that the Veteran’s depressive and anxiety symptoms greatly affect his ability to function in an occupational environment. He struggled daily with depression and anxiety, as well as chronic pain, that interferes with functioning and energy levels. The Veteran’s mood was labile to the degree that he would struggle to handle the daily stressors involved in employment and dealing with other people. He reported that he already struggled to provide pastoral care to elderly in nursing homes, and it was not something he could do daily due to pain issues and mental health symptoms. The record reflects that for the period since July 20, 2012, the Veteran worked as a preacher, but was not receiving any salary. He was also not working on a daily basis and at a very limited level due in large part to his mental health symptoms. The VA examinations and treatment records support these facts. The Veteran has a limited education and had one year of training as a mechanic. However, as indicated by the August 2012 VA hernias examiner, the Veteran’s service-connected left inguinal hernia prevented employment of a physical nature due to weight-lifting restrictions. While the August 2012 VA examiner stated that the Veteran could “probably” function adequately in employment situations, it was in situations where the Veteran was his own boss, worked alone, and was not subject to oversight or correction by another individual. However, such is not a realistic scenario given the Veteran’s education and experience, especially as a minister. Also, despite the examiner’s conclusion, the examiner also indicated that the Veteran had difficulty in establishing and maintaining effective work and social relationships, and could not work an 8-hour day. He also resigned from the church two weeks prior to the examination due to conflicts he could not handle. In addition, the July 2017 VA examiner indicated that the Veteran’s depressive and anxiety symptoms greatly affect his ability to function in an occupational environment. His mood was labile to the degree that he would struggle to handle the daily stressors involved in employment and dealing with other people, and that he was struggling to provide pastoral care to elderly in nursing homes. It was not something he could do daily due to pain issues and mental health symptoms. Given this evidence, it would be difficult to conclude that sedentary employment would be possible as well. The evidence reflects that the Veteran’s service-connected major depressive disorder with anxiety disorder and left herniorrhaphy precluded the Veteran from obtaining or maintaining substantially gainful employment. As such, the Board resolves any doubt in favor of the Veteran and finds that he is entitled to TDIU from July 20, 2012. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND TDIU prior to July 20, 2012 Regarding the remaining issue of entitlement to TDIU prior to July 20, 2012, in the March 2017 remand, the Board found that the issue of entitlement to TDIU was inextricably intertwined with the pending claim seeking an increased rating for bilateral hearing loss, and the matter was deferred pending resolution of the increased rating claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). However, as indicated above, the claim for an increased rating for bilateral hearing loss has not been resolved yet, as the Veteran requested a hearing before the Board in his February 2018 VA Form 9. Thus, the Board must again remand this aspect of the TDIU issue for deferral pending resolution of the increased rating claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: After the Veteran’s pending claim of entitlement to an initial increased rating for bilateral hearing loss is resolved, readjudicate the Veteran’s claim of entitlement to a TDIU prior to July 20, 2012-including, if necessary, whether this benefit should be granted on an extraschedular basis under 38 C.F.R. § 4.16(b). If the benefit sought remains denied, furnish the Veteran and his attorney with a supplemental statement of the case and allow an appropriate time for response. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel