Citation Nr: 21064789 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 20-01 970 DATE: October 21, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The evidence is sufficient to show that the Veteran's service-connected disabilities have been of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 501; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1989 to September 1992. He filed a TDIU claim in May 2018. His application for TDIU (Form 21-8940) dated May 2018 indicated that he worked as business owner and electrician at Liberty Electric from 2001 to 2018. The Employment Information (Form 21-4192) dated May 2018 showed that he received his last paycheck from Liberty Electric in May 2018. At his Board hearing in October 2021, the Veteran testified that he lost the ownership of his business as result of his divorce. Court documents show that the Veteran was granted divorce in June 2018 and his wife was awarded the sole ownership of the family business (Liberty Electric Inc.) and would pay $5000 per month as alimony to the Veteran for 60 months under certain conditions. However, the receipt of alimony is not taken as an indication of the Veteran's employability during that time. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Here, the Veteran is currently rated at 50 percent for migraine headaches, 50 percent for major depressive disorder, 50 percent for sleep apnea, and 10 percent for tinnitus with a combined rating of 90 percent. Accordingly, he meets the threshold criteria for TDIU under 38 C.F.R. § 4.16(a). The next question will be whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation, in other words, incapable of performing the physical and mental acts required by the employment, regardless whether the Veteran can find employment or not. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). VA received two VA physicians' opinion letters in November 2018. Dr. H. stated that he had been treating the Veteran since October 2017, that the Veteran was diagnosed with depressive disorder secondary to migraine headaches, and that he would not be able to participate in gainful employment related to these chronic conditions. Another VA physician, Dr. P. stated that the Veteran had chronic migraine headaches, that he recently went through a divorce which caused him to loss his business, that he had been employed until recently only because he was the owner and could work on his own schedule part time according to the fluctuation of his health. Dr. P. stated that now that the Veteran had lost his business and was not in a position to start a new one, it was unlikely that he would be able to find an employer who would let him work on his own schedule. In Dr. P.'s opinion, the Veteran is completely and permanently disabled because of his headaches. After a private psychiatric evaluation in December 2020, a private psychologist opined that the Veteran's chronic depression, coupled with his migraine headaches and sleep apnea were sufficiently severe and persistent to preclude him from working full or part time in a paid employment setting now and/or in the future. (Continued on the next page) The Board finds that the evidence is sufficient to show that the Veteran's service-connected disabilities have caused him to be unable to obtain or maintain substantially gainful employment. A TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.