Citation Nr: 18159463 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-17 925 DATE: December 19, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT After resolving reasonable doubt in the Veteran’s favor, his service-connected disabilities prevent him from securing and following substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to May 1981 and October 1982 to October 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The issues of entitlement to service connection for a lumbar spine disability, right knee disability, and left shoulder disability were most recently remanded by the Board in a February 2018 Board remand. As discussed in that remand, entitlement to TDIU has been separated from those issues because the Veteran requested a Board hearing, whereas he withdrew his request for a Board hearing for the other issues. The Board’s review of the claim file reveals that the Agency of Original Jurisdiction (AOJ) is still undertaking development on these service connection issues in response to the Board remand. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. Entitlement to TDIU. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). For the purpose of determining entitlement to a schedular TDIU, disabilities resulting from a common etiology or resulting from a single accident are considered as one disability. Id. The Veteran only has one disability (for his right shoulder) rated at 40 percent or more from April 17, 2017. However, his service-connected disabilities of status post-fracture of the left tibia and fibula and left knee scar result from a single motor vehicle accident in service. See April 1991 rating decision. Thus, the ratings for the left tibia and fibula (30 percent) and left knee scar (10 percent) combined together meet the criteria for a rating of 40 percent or more, and the schedular criteria for TDIU have been met. The Veteran is service-connected for several disabilities, to include major depressive disorder and a right shoulder disability. He stopped working as an Internal Revenue Agent in December 2014, see April 2015 Social Security Administration (SSA) records, and his employer stated it was due to his depression, anxiety, and lumbar spine (a non-service-connected disability). See May 2015 correspondence. SSA found the Veteran disabled primarily due to his “affective disorders” and secondarily due to his non-service-connected spine disability. See May 2015 SSA determination. A vocational specialist opined the Veteran was unable to work with the public, see SSA Residual Functional Capacity Assessment, but the Veteran reported adequate previous relationships with his coworkers. See March 2015 SSA records. He was also found able to sustain pace and attention for simple and detailed tasks. See SSA Residual Functional Capacity Assessment. Nonetheless, the vocational specialist opined that the Veteran had moderate limitations to maintain good attention and concentration for extended periods. Id. A VA examiner opined that his service-connected right shoulder disability was limited in reaching to shoulder height or above, lifting, pushing, pulling or carrying objects that weigh 10 or more pounds, or doing activities that require rapid upper extremity movements. See April 2016 VA shoulder examination. SSA records also reflect the Veteran had limited ability to reach in front, laterally, and overhead due to the right arm. See SSA Residual Functional Capacity Assessment. CONTINUED ON NEXT PAGE While an April 2016 VA examiner opined that the Veteran’s service-connected major depressive disorder was not severe enough to “preclude a normal life,” that opinion is given less probative weight because it does not consider the Veteran’s other service-connected disabilities. See April 2016 VA psychological examination. Thus, after resolving reasonable doubt in the Veteran’s favor, the evidence reflects that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful occupation, and entitlement to TDIU is warranted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel