Citation Nr: 21061938 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-35 705 DATE: October 5, 2021 ORDER Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) from August 14, 2014, is granted. FINDING OF FACT The Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met since August 14, 2014. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from August 1964 to August 1966. A TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). In calculating whether a Veteran meets that 60/70 percent schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a). In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2020). In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). The Court has also held that a Veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, 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. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Furthermore, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The Board observes that for the time period in question, the Veteran has been rated as at least 70 percent disabling. Based upon the above, the Veteran has met the criteria for consideration under 38 C.F.R. § 4.16 (a). As of August 14, 2014, service connection was in effect for major depressive disorder (MDD), rated as 70 percent disabling, and residuals of a left eye injury with no light perception, corneal scar, and aphakia, rated as 30 percent disabling. The Veteran's combined evaluation was 80 percent. At the time of a February 2015 VA examination, the Veteran was noted to have worked for several years in maintenance for a hospital system before working as a carpenter up until 3 years ago. The Veteran was found to have occupational impairment due to continuous anxiety, fear, and depression, resulting in avoidance and isolative behaviors and affecting his ability to consistently function appropriately and effectively; impaired impulse control with episodes of unprovoked irritability; intermittent reduction in or an absence of completing activities of daily living; recurrent states of acute anxiety; decreased motivation and inability to experience a positive mood state for any duration of time; flattened affect; impairment of short- and long-term memory; inability to establish effective relationships; chronic hypersomnia (10+ hours per day) with decreased energy; and, difficulty coping with or adapting to stressful circumstances (real or imagined) . The examiner indicated that due to the above, the Veteran was unable to complete a normal workday and workweek without interruptions from psychologically based symptoms or perform at a consistent pace without an unreasonable number and length of rest periods due to fatigue or intrusive psychological symptoms or being granted an extended period of time to complete routine occupational tasks. The examiner noted that the degree of limitation in three functional areas (activities of daily living; social functioning; and, concentration, persistence or pace) was appraised using a five-point scale: None, Mild, Moderate, Marked, Extreme. The Veteran received a rating of "marked." At the time of a May 2016 VA psychiatric examination, the Veteran was noted to have no work related history since his last exam or medical opinion, with periods of reduced productivity due to: recurrent states of acute anxiety; recurrent panic attacks; decreased motivation, dysthymic mood, and flattened affect with continued inability to maintain effective relationships; impairment of short- and long-term memory; periods of chronic hypersomnia (10+hours per day) with decreased energy; and, use of avoidance behaviors to cope with difficult or stressful circumstances. At the time of a May 2016 VA eye examination, the Veteran's eye disorder was noted to severely impair tasks requiring fine detail, depth perception and peripheral vision. The Veteran was found to have difficulty with mobility and with missing objects on the left side due to his vision impairment. Thus, physical and sedentary employment could be impaired. Also, activities of daily living in the home could be impaired due to his vision impairment with only one seeing eye. In a July 2016 addendum report, it was indicated that the degree of limitation in three functional areas related to employment (activities of daily living; social functioning; and, concentration, persistence or pace) was appraised using a five point scale: None, Mild, Moderate, Marked, Extreme. The Veteran received a rating of "mild" for the first domain and "moderate" in the remaining two domains due to his service-connected diagnosis of MDD. The examiner indicated that he was not qualified to comment on the impact of the Veteran's eye disorder on his employment. The Veteran's work history demonstrates that he has only performed physical labor, to include carpentry work. The Veteran's MDD has been assigned a 70 percent disability evaluation, which contemplates severe occupational impairment. The eye examiner has indicated that the Veteran's service-connected eye disorder severely impairs tasks requiring fine detail, depth perception, and peripheral vision, and that the Veteran has difficulty with mobility and with missing objects on the left side due to his vision impairment, which impair physical and sedentary employment. The Board notes that the Veteran cannot work in the field in which he has training and experience, he has a lack of training and education in other fields of work, and his service-connected MDD and eye disorder prevent him from obtaining and securing substantially gainful employment. The weight of the evidence, including the examiners' findings, along with the Veteran's statements and work history, demonstrate that he has met the criteria set forth in § 4.16, and that a TDIU based upon service-connected disabilities is warranted since August 14, 2014, the date of the grant of service connection for his MDD. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, Counsel Parakkal, Kalpana M. 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.