Citation Nr: 20004856 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 14-25 532 DATE: January 23, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran meets the schedular percentage requirements for TDIU, and his service-connected disabilities have at least as likely as not prevented him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. It was previously before the Board in March 2018. At that time, the Board denied entitlement to TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court issued a memorandum decision that set aside the Board’s March 2018 decision and directed readjudication of the Veteran’s TDIU claim consistent with the Court’s findings. The Board notes TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Yet, a finding of total occupational impairment is not necessary to establish entitlement to TDIU. See 38 C.F.R. § 4.16(a) (indicating TDIU may be assigned in cases of marginal employment). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. VA is required to resolve reasonable doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding any material issue. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Here, the Veteran meets the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a) because he has a single service-connected disability ratable at 60 percent or more. The Board further finds the Veteran’s service-connected disabilities have at least as likely as not prevented him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. The record establishes the Veteran last worked full time in 2004. The Board notes the Social Security Administration (SSA) granted the Veteran entitlement to disability benefits, effective October 1, 2005, based primarily on the occupational impairment resulting from his service-connected psychiatric disability. While not dispositive on the issue of TDIU, the SSA grant of disability compensation constitutes highly probative evidence regarding the Veteran’s TDIU claim. See Collier v. Derwinski, 1 Vet. App. 413 (1991) (indicating the SSA’s favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). Further, a VA vocational rehabilitation counselor recently determined that it is not realistic for the Veteran to return to gainful employment due in part to symptoms of his service-connected psychiatric disability, resulting in a denial of the Veteran’s application for vocational rehabilitation services. The Board recognizes VA examiners have reported the functional impairment resulting from the Veteran’s service-connected disabilities does not prevent all forms of employment; however, TDIU cannot be denied on this basis. There must be evidence that shows the Veteran can secure and follow substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994) (indicating the cannot deny TDIU without producing evidence, as distinguished from mere conjecture, showing the claimant can perform work that would produce sufficient income to be other than marginal). Both VA and the SSA have made determinations that the Veteran is incapable of securing and following substantially gainful employment due primarily to the functional impairment resulting from his service-connected psychiatric disability. Thus, the evidence is in at least relative equipoise as to the material issue of whether the Veteran’s service-connected disabilities him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him, requiring the resolution of reasonable doubt in the Veteran’s favor. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Board acknowledges the Court noted there appears to be outstanding treatment records from the Vet Center in Phoenix, Arizona, since the most recent records available from this facility are from 2009 and other treatment records reference treatment at the facility through at least 2011; however, the Board finds these records are unnecessary to resolve the issue of entitlement to TDIU because there is sufficient evidence of record to establish the Veteran’s service-connected disabilities have at least as likely as not prevented him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. A remand to obtain records that are not required to resolve the issue of entitlement to TDIU would only serve to delay adjudication of the Veteran’s appeal, so the Board finds it is in his best interest to grant entitlement to the benefit sought without remanding to obtain the outstanding records identified by the Court. In sum, the Board finds the criteria for entitlement to TDIU have been met in the Veteran’s case. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.