Citation Nr: 21066654 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-46 307A DATE: November 1, 2021 ORDER Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) 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. 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 July 1962 to June 1965. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2021. A transcript of the hearing is of record. 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). Service connection is currently in effect for bilateral defective hearing loss, rated as 50 percent disabling; headaches associated with TBI, rated as 30 percent disabling; tinnitus, rated as 10 percent disabling; scar of right thigh, rated as noncompensable; and TBI, rated as noncompensable. The Veteran's combined evaluation is 70 percent. Thus, the Veteran has met the criteria for consideration under 4.16(a). The Veteran maintains that his current service-connected disabilities cause him to be unemployed. The Board notes that the Veteran has been found to be disabled for social security purposes as a result of a cognitive disorder resulting from a September 2000 post-service civilian TBI. In a May 2013 letter, the Veteran's private physician B. F., M.D., indicated that the Veteran suffered from chronic headaches with severe headaches at least twice a month, which resulted in the Veteran being incapacitated for that day. In a July 2015 letter, D. M., M.D., stated that the Veteran had risk factors including hypertension, diabetes and underlying coronary disease. He was noted to be post CABG x 2 dated back in 1991. He stated that because of his underlying heart disease he was not able to return to any type of fulltime work status. In an August 2015 letter, M. D., D.O. stated that the Veteran's TBI, chronic headaches, and coronary artery disease precluded him from gainful employment. In an August 2015 letter, Dr. F. indicated that the Veteran sustained a fractured skull in 1964 while on active duty. He noted that the Veteran had suffered with chronic headaches since the injury. He had gone to the Military, TAMC and the VA with little results. Nothing had been done to relieve the constant pain. He stated that he had treated the Veteran since 1999. He noted that the Veteran consistently stated that the degree of pain from the headaches incapacitated him for as much as one to two days. He opined that in light of his combined disabilities, the Veteran was unable to be gainfully employed. In a letter dated May 10, 2016, Dr. D. stated that the Veteran's service-connected medical conditions precluded gainful employment and were expected to be permanent. The Veteran was afforded several VA examinations in conjunction with his claim. Following a March 2018 VA audiological examination, the examiner rendered the following opinion: Hearing loss can impact the work environment but can be aided by places with assistive measures. Special equipment such as captioned telephones and visual alarms can be used to help the hearing-impaired person in the workplace. Provided meeting notes and outline of topics of discussion can help the hearing-impaired person participate in meetings. Use of effective communication strategies (such as face to face conversation with minimal distance, getting person's attention before speaking) should be used. Hearing loss does not preclude one from gainful employment. There are many congenitally deaf people with full time employment. The examiner indicated that the Veteran reported at the VA examination that his bilateral hearing loss did not cause functional impairment. Following a March 2018 VA headache examination, the examiner opined that the Veteran had no occupational/functional loss following his head injuries in 1964/5. His tension headaches from his 2000 incident caused him to have to stop what he was doing; however, his migraines did not affect him functionally. Following a March 2018 TBI examination, the examiner opined that the Veteran had TBI 1964 and 1965 but returned to civilian life and worked in construction for many years. He had another TBI in September 2000 status post injury. The head injury associated with the injury in 2000 caused claimant to retire. She stated that the head injuries related to military service did not affect the Veteran's work life. His tension headaches from his 2000 incident caused him to have to stop what he was doing; however, his migraines did not affect him functionally. (Continued on the next page) The Veteran's work history demonstrates that he has only performed physical labor. He has been found to be unemployable for social security disability benefits resulting from a cognitive disorder. The Board notes that the Veteran cannot work in the field in which he has training and experience and he has a lack of training and education in other fields of work. The medical opinions as to whether the Veteran's service-connected disabilities prevent him from being employable are at least in equipoise. While the VA contract examiners have indicated that the Veteran's service-connected disabilities individually do not prevent the Veteran from obtaining or maintaining substantially gainful employment, the private examiners, who have treated the Veteran, have cited to the overall impact on the Veteran's service-connected disabilities and found that they collectively prevent him from obtaining and maintaining employment. Moreover, Dr. F. reported having treated the Veteran since 1999, prior to the September 2000 accident. The Board finds these opinions to be at least in equipoise. 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. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.