Citation Nr: 21063246 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-28 933 DATE: October 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The probative evidence demonstrates that the Veteran's service-connected disabilities as likely as not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2008 to July 2016. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one disability, the disability is rated 60 percent or more, or if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently service connected for adjustment disorder, rated as 70 percent disabling; right and left shoulder impingement and lumbar spondylosis, each rated as 20 percent disabling; right and left wrist tendonitis, cervical spondylosis, allergic rhinitis, and asthma, each rated as 10 percent disabling; left elbow osteoarthritis, left hand arthritis, right hip strain, right and left ankle sprain, left metatarsal arthritis, right lateral epicondylitis, left and right lumbar radiculopathy, and left thumb scar, each rated as noncompensable. The Veteran's combined rating was 100 percent from July 24, 2016, and 90 percent from July 13, 2017. Thus, the schedular criteria for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met. Upon review of the record, the Board finds that the probative evidence of record reflects that the combined effects of the Veteran's service-connected disabilities at least as likely as not render him unable to secure and follow substantially gainful employment. In this regard, the evidence of record reflects that the Veteran has not been engaged in substantially gainful employment since his discharge from service in July 2016. During a June 2017 VA examination, the examiner noted that the Veteran's adjustment disorder symptoms include difficulty understanding complex commands; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. As such, the examiner opined that the Veteran's service-connected adjustment disorder results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Additionally, an August 2017 VA examiner indicated that the Veteran's service-connected back, neck, and shoulder conditions cause difficulty with bending, twisting, pushing and pulling, and lifting heavy objects above his head. The Board also notes that in May 2017 the Veteran was awarded disability benefits from the Social Security Administration (SAA) due to his service-connected back, neck, and psychological disabilities. Although not bound by an SSA decision, the Board finds the May 2017 SSA decision to be highly probative and pertinent to the Veteran's claim, as it provides a thorough discussion of the Veteran's limitations and effect on his employability. See Martin v. Brown, 4 Vet. App. 136, 140 (1993) (finding that while an SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a Veteran's claim). In light of the above and after resolving all doubt in favor of the Veteran, the Board finds that the Veteran is unemployable based on the combined effects of his service-connected disabilities. Accordingly, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.