Citation Nr: 21066024 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-35 463 DATE: October 28, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for 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 with the United States Air Force from August 1964 to August 1968. In December 2018 the Board of Veterans' Appeal (Board), among other things, remanded the TDIU claim. In an October 2020 decision by a Veterans' Law Judge not the undersigned, the Board denied the claim for a TDIU. The Veteran appealed the October 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 order, which incorporated the parties June 2021 Joint Motion for Remand (JMR), the Court and vacated and remanded the Board decision. As to the concerns raised in the JMR, the Board finds that they are moot because the below decision is granting the TDIU claim. The TDIU Claim The Veteran claims he is entitled to a TDIU because his service-connected disabilities prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). 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. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record shows that the Veteran is service-connected for the following disabilities: Major depressive disorder rated as 70 percent disabling from December 11, 2013, 10 percent disabling from September 9, 2016, and 50 percent disabling from July 31, 2020; Left total knee replacement rated as 100 percent disabling from January 6, 2004, and 30 percent disabling from March 1, 2005; Tinnitus rated as 10 percent disabling May 21, 2014; and Bilateral hearing loss rated as 0 percent disabling from May 21, 2014. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1) to (4) during the pendency of the appeal because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher for at least part of the time since he filed his claim. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran's VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in January 2014, March 2014, January 2019, and April 2019, reported, in substance, that he had not worked full-time and became he is too disabled to work full time in April 2013 or August 2014 because of his service-connected disabilities. As to his work history, the Veteran reported that from February 1996 to August 2014 he worked in car sales with his only working part-time starting in April 2013. As to his education, the Veteran reported that he had 3-years of college. As to the Veteran's being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment in car sales as well as other possible employment that could make use of his work experience and 3-years of college, the Board finds that the medical records show that the problems caused by his service-connected major depressive disorder, left total knee replacement, tinnitus, and bilateral hearing loss adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers, and carry out the tasks required by employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected major depressive disorder, left total knee replacement, tinnitus, and bilateral hearing loss would make it dangerous for the Veteran and his co-workers for him to work for the first time in most non-sedentary employments. Id. Similarly, the Board finds that that the major depressive disorder, left total knee replacement, tinnitus, and bilateral hearing loss would make it very difficult to work in most sedentary employments, including as a car salesman, because of the problems that they would cause interacting with his co-workers and customers and carry out the duties required by such employment as well as to learn the new skills needed for other sedentary employment. Id. Given the above, the Board finds that the Veteran's service-connected disabilities prevent him from securing or following a "substantially gainful" occupation given his prior vocational history, work experience, and the impact his service-connected major depressive disorder, left total knee replacement, tinnitus, and bilateral hearing loss have on obtaining and maintaining substantially gainful non-sedentary employment for the first time and sedentary employment, including in his past employment in car sales, because of the problems they would cause in any work environment. Further development of this issue is simply not warranted in light of the history of this case. In reaching the above conclusions, the Board has not overlooked the fact that the Veteran has Parkinson's disease, he is not service connected for Parkinson's disease, and Parkinson's disease also caused difficulty with his obtaining and maintaining his employment. See, e.g., November 2019 VA 21-4192 Request for Employment Information in Connection with Claim for Disability; December 2013 VA 21-0820 Report of General Information; July 2016 Heather Henderson-Galligan, Ph.D., opinion; and October 2014 opinion from Richard N. Silvergleid, M.D.. However, the Board finds that the fact that a nonservice connected disability may have also prevented the Veteran from securing or following a substantially gainful occupation does not, by itself, preclude his service-connected disabilities, standing alone, from also having the same adverse impact when considering his prior vocational history, work experience, and the impact they have on all employment. See 38 C.F.R. § 4.16; Geib, supra; Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. If the Veteran has a disagreement with the RO's effective date for the TDIU, he may appeal that determination to the Board, if needed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.