Citation Nr: A19001557 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190429-7600 DATE: September 26, 2019 ORDER Entitlement to total disability rating based on individual unemployability (TDIU) prior to April 1, 2018 is denied. Entitlement to TDIU from April 1, 2018 is granted. FINDINGS OF FACT 1. Prior to April 1, 2018, the Veteran was able to obtain or retain substantially gainful employment. 2. From April 1, 2018, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to April 1, 2018, the criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2018). 2. From April 1, 2018 the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the rating decision on appeal was issued in April 2016. The Veteran timely appealed this rating decision and the April 2019 Statement of the Case to the Board and requested evidence submission review. The Veteran served on active duty from June 1985 to May 1988, May 2004 to October 2004, February 2006 to June 2007, and October 2007 to October 2013. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; or (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2018). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to April 1, 2018, the Veteran was gainfully employed as a truck driver, able to make over fifty thousand dollars in the year 2017, and stated he did not stop working until April 2018. See February 2019 SSA Earnings Record and February 2019 Veteran Statement. Therefore, TDIU is not warranted prior to April 1, 2018. The Veteran has only worked as a truck driver post service and has a high school diploma. See February 2019 Veteran Statement and May 2018 VA examination report. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis from March 9, 2018. The Veteran’s adjustment disorder with depression is rated at 50 percent disabling and his combined rating is 70 percent from March 9, 2018. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. Dr. M.C. provided a very thorough letter that detailed the Veteran’s condition and ability to obtain gainful employment. See March 2019 Dr. M.C. Letter. Dr. M.C. stated the Veteran was unable to obtain substantial gainful employment since April 2018 due to his depressive symptoms. Dr. M.C. noted the Veteran to have continuous and severe anxiety, impaired judgement, poor independent functionality, significant impairments to interpersonal relationships, and that the Veteran is severely altered in his capacity to engage in task completion. Furthermore, the May 2018 VA examiner noted the Veteran to have occupation and social impairment with decreased work efficiency and intermittent periods of inability to perform tasks, and difficulty adapting to work like settings. Regarding the Veteran’s back condition, he stated his back hurts all the time. See March 2018 Veteran Statement. The April 2016 VA examiner also noted the Veteran is unable to do physical labor due to his back condition. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran’s service-connected psychiatric and back conditions made him unable to function or work prolonged periods in a workplace setting. Given the Veteran’s education and limited work history, it is unlikely the Veteran has the physical and mental capacity to work as a truck driver or successfully transition into another field of work that amounts to substantially gainful employment. Additionally, Dr. M.C.’s opinion was very thorough and highly persuasive. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected disabilities at least as likely as not prevented him from obtaining and maintaining gainful employment. Accordingly, resolving all doubt in the Veteran’s favor, the criteria for TDIU from April 1, 2018, and no earlier, have been met. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate Counsel 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.