Citation Nr: 21001219 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-20 331 DATE: January 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective from September 22, 2015, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT As of September 22, 2015, there is sufficient evidence to conclude that the Veteran’s service-connected disabilities render him unemployable. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1966 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) from July 2015 and November 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In August 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. The Veteran’s claim of TDIU was raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded these claims in October 2019 and May 2020 for further development. The Board remanded the claim with instructions for the Agency of Original Jurisdiction (AOJ) to provide the Veteran with a formal application for his TDIU claim, along with providing a notice of the information and evidence needed to substantiate the claim. The AOJ substantially complied with the remand directives. TDIU Generally, total disability will be considered to exist when there is present any impairment of mind or 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 are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. When the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is considered to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). An award of a TDIU "does not require proving 100 percent unemployability." Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show that he or she has an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). When making this determination, "the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The Board additionally "must take into account the individual veteran's education, training, and work history" but "may not consider nonservice-connected disabilities or advancing age." Id. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Additionally, in determining whether unemployability exists for a TDIU, 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 any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Neither the effect of nonservice-connected disabilities nor of the veteran's age may be considering in determining whether TDIU is warranted. Id. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran was sent a letter in May 2020 that informed him of the evidence required to support a claim for TDIU and requested that he complete and return VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Individual Unemployability, in order to provide information about his employment history. No response was received from the Veteran, to include the VA Form 21-8940; however, as noted more fully below, the Board finds that there is already sufficient evidence in the record to allow the remaining claim on appeal. The Veteran and his Agent maintained at the August 2019 Board hearing that the Veteran’s service-connected posttraumatic stress disorder (PTSD) symptoms preclude the Veteran’s “gainful employment and result in his being permanently and totally disabled from gainful employment,” while acknowledging that neither he nor the Veteran have officially submitted a claim for TDIU. As service connection is in effect for PTSD, rated 70 percent as of September 2015; sleep apnea, rated 50 percent as of November 2016; bilateral hearing loss, rated 0 percent; and erectile disfunction, rated 0 percent. A review of the record shows the Veteran meets the schedular criteria for TDIU as of September 22, 2015. 38 C.F.R. § 4.16(a). While there is no specific evidence regarding the Veteran’s employment in the claim’s file, evidence gleaned from the record showed that the Veteran has not worked at any time during the period on appeal, according to an October 2016 VA examination for his PTSD, at which time he stated that he had not worked since his last examination in July 2015, and a December 2019 PTSD VA examination, at which time he reported that he had not worked since his last VA examination in October 2016. According to a January 2019 VA examination for his bilateral hearing loss, the examiner noted that this disability caused a functional impact noting that the hearing loss caused anxiety and caused the Veteran to feel frustration because of it. According to his December 2019 VA examination for his PTSD, the Veteran reported that he was not currently employed or pursuing educational opportunities, adding that, during his career, he had problems with authority and “spoke his mind” in ways that could create friction in an employment setting. There is no evidence in the record that disputes the Veteran’s claim that he has been unemployed since 2015 and he provided sworn testimony in this regard in August 2019, at which time he stated that he retired early from a fire department after 21 years at the age of 50 or 51 (approximately 1999), which was followed by some sporadic work at an American Legion office and with a loan company. According to a private PTSD assessment from July 2019, the Veteran’s PTSD symptoms preclude the Veteran’s gainful employment. The Veteran did mention that he started a construction company after leaving the fire department, but as was noted above, he has consistently denied having gainful employment at the time of each of his relevant VA examinations since October 2016 and in sworn testimony before the Board in August 2019. While the Veteran has not fully cooperated with VA's recent efforts to develop the claim for TDIU that was raised by the record, after weighing all of the evidence of record reported in this decision, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities, primarily his PTSD, have rendered him unable to secure and follow a substantially gainful occupation since September 22, 2015. Accordingly, the Board finds that entitlement to TDIU is warranted. 38 C.F.R. §§ 3.341 (a), 4.16, 4.18, 4.19. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.