Citation Nr: 20052906 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-23 128 DATE: August 10, 2020 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected major depressive disorder with anxiety is granted. FINDING OF FACT With resolution of the doubt in his favor, the Veteran's service-connected major depressive disorder with anxious distress made him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria to establish entitlement to a TDIU due to service-connected major depressive disorder with anxious distress have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1999 to May 2000. A TDIU is granted. VA regulations allow for the assignment of TDIU when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the Veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is "whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s service-connected disorders are evaluated as 70 percent for major depressive disorder with anxious distress; at 50 percent for bilateral pes planus; at 20 percent for residual scars of the left ankle; and at 20 percent for left ankle impingement syndrome. Therefore, he meets the schedular criteria for TDIU. In a June 2019 VA examination for mental disorders other than post-traumatic stress disorder, the examiner noted a diagnosis of major depressive disorder “with anxious distress.” The Veteran reported that that he recently gave his notice of resignation as an officer at the Custer County Jail due to his disabilities. He reported that he has no plans for a new job. He also reported significant anxiety related to stress and worry, and that he struggles to cope. He stated that his anxiety causes him to be restless or “fidgety” at times and that he does not function well under pressure. Although the examiner did not opine on whether the Veteran’s major depressive disorder made him unable to secure or follow a substantially gainful occupation, the examiner noted that his disorder resulted in disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including work or a worklike setting. In a July 2019 VA examination, the examiner noted that the Veteran’s major depressive disorder impacts his ability to function in an occupational environment. In particular, the examiner noted that the Veteran’s depressed mood, anxiety, chronic sleep impairment, and disturbance of motivation would at least as likely as not impair his reliability to report to work and on time. The examiner stated that these symptoms would at least as likely as not impair the Veteran’s efficiency and productivity in a work environment. The examiner further stated that the Veteran’s anxiety and difficulty adapting to stressful circumstances would at least as likely as not impair his ability to work under pressure. A TDIU is granted based on the benefit-of-the-doubt doctrine. The determination of whether a TDIU is an adjudicative decision, however medical evidence is highly relevant. Although neither the June nor July 2019 VA examiner opined on whether the Veteran's major depressive disorder made him unable to secure or follow a substantially gainful occupation, both examiners noted that the Veteran experiences difficulty in adapting to stressful circumstances, including work or a worklike setting. The July 2019 VA examiner opined that the Veteran's major depressive disorder would impair his reliability to report for work and do so timely, impair the Veteran’s efficiency and productivity in a work environment, and impair his ability to work under pressure. (Continued on the next page.) With resolution of reasonable doubt in favor of the Veteran, a TDIU is warranted and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.