Citation Nr: 19190862 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 16-28 414 DATE: December 3, 2019 ORDER A total disability based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 18, 2017, is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment from August 31, 2012 through the current total schedular rating in effect as of September 18, 2017. CONCLUSION OF LAW The criteria for TDIU on a schedular basis have been met prior to September 18, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to November 1971, with additional service in the National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified, sitting in New Orleans, Louisiana, before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. Entitlement to TDIU prior to September 18, 2017. TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Generally, to be eligible for a TDIU claim, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Here, effective July 12, 2010, the Veteran’s service-connected disabilities included: coronary artery disease, status post coronary artery bypass graft, evaluated at 60 percent disabling; posttraumatic stress disorder (PTSD) and major depressive disorder, evaluated at 30 percent disabling; tinnitus, evaluated at 10 percent disabling; and bilateral hearing loss, evaluated at 0 percent disabling. The evaluation of coronary artery disease was at least 60 percent disabling. Additionally, the combined evaluation was 80 percent disabling. Therefore, the schedular requirements for TDIU per § 4.16(a) have been met as of July 12, 2010. The Board notes that, effective September 18, 2017, the Veteran’s combined evaluation increased to 100 percent disabling. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 314 n.2 (2011) (finding entitlement to TDIU mooted from the effective date of a 100 percent schedular disability rating); see also Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). Accordingly, the Board limits its findings on the issue of TDIU to the period prior to September 18, 2017, and as of August 31, 2012, the date the Veteran stopped full-time work. In this case, the Veteran submitted a formal claim for a TDIU (VA Form 21-8940) in September 2012, indicated he last worked on August 30, 2012, and was unable to secure or follow any substantially gainful employment due to his service-connected disabilities, to include his heart disease, PTSD, and hearing loss. Accordingly, the Board finds that TDIU was reasonably raised by the record. After affording him the benefit of the doubt, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities prevented him from securing or following gainful employment from the end of August 2012. In determining whether the Veteran was capable of obtaining and maintaining gainful employment due to his service-connected disabilities, the Board must consider the Veteran’s work history, education, and any special training. See Rice, 22 Vet. App. at 452 (stating that entitlement to TDIU is based on an individual’s particular circumstances). The Veteran has a high school diploma and did not attend college or vocational training. Additionally, the Veteran has only worked for one employer since 1994, as a sales representative for an auto parts vendor. 09/28/2012, VA 21-8940. During an August 2019 Board hearing, the Veteran testified that he stopped working on August 30, 2012, due to his service-connected disabilities. Specifically, the symptoms of PTSD caused him to become aggravated and upset when hearing a telephone ring. Additionally, his hearing loss and tinnitus impaired his ability to communicate with coworkers and clients. And, the symptoms of coronary heart disease prevent him from walking or standing for prolonged periods of time. The Veteran further indicated he was eventually unable to maintain employment, despite his employer providing accommodations for his disabilities, including a stool for sitting, frequent breaks, and shortened hours. 08/02/2019, Hearing Transcript. The Veteran’s testimony is largely corroborated by lay statements from his coworkers. All of the coworkers indicated that the Veteran was unable to stand or walk for prolonged periods, requiring him to sit on a stool or rest frequently throughout the day. Additionally, the Veteran was noticeably nervous whenever the phone rang. Additionally, the Veteran’s hours were reduced to accommodate his disabilities. 05/19/2016, VA 21-4138; 05/19/2016, VA 21-4138; 05/19/2016, 1VA 21-4138. An April 2013 VA examination opined that the Veteran’s service-connected hearing loss impacted his ability to work because he is unable to understand what is being said to him. Another April 2013 VA examination opined that the Veteran’s service-connected PTSD impacted his ability to cope with daily stress at work, manifesting in anxiety and having difficulty interacting with customers. Although the examiner indicated that the Veteran may perform better at a less stressful work setting, the examiner further indicated that the Veteran’s skill set is chiefly in sales and the prospect of acquiring a new career would be equally overwhelming to the Veteran. Likewise, a May 2013 VA examination opined that the Veteran’s coronary heart disease resulted in difficulty in performing physical labor, although he may be able to do sedentary work. 06/25/2013, C&P Exam. Upon review of all lay and medical evidence, and after affording the appellant the benefit of the doubt, the Board finds that the Veteran’s level of disability, given his education, training, and experience, would have rendered it impossible for the average person to obtain or retain substantially gainful employment of some type based solely on his service-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence demonstrates that the Veteran’s service-connected coronary artery disease, PTSD and major depressive disorder, tinnitus, and bilateral hearing loss render him unable to sustain gainful employment. Additionally, the Veteran’s PTSD prevents him from obtaining different employment due to the associated stress from acquiring a new career. Additionally, the Board notes that the Veteran is not entitled to special monthly compensation (SMC) under 38 U.S.C. § 1114 as of September 18, 2017. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran does not have a single disability being rated at 100 percent; as such, as such, SMC under statutory housebound was not applicable. The Board also notes there is no indication in the competent medical evidence of record that the Veteran is permanently in-fact housebound. Therefore, there is no basis for assignment of SMC per 38 U.S.C. § 1114. (Continued on the next page)   The Board finds the evidence to be in equipoise with respect to whether the service-connected disability at issue precluded the Veteran from obtaining and retaining substantially gainful employment starting August 31, 2012 and through the current date of September 18, 2017. When reasonable doubt is resolved in the appellant’s favor, the Board finds that TDIU on a schedular basis is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, 4.7, 4.16(a). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.