Citation Nr: 21068470 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-01 705 DATE: November 10, 2021 ORDER Entitlement to a total rating on the basis of individual unemployability due to service-connected disability (TDIU) for the period beginning on July 13, 2017 is granted. FINDING OF FACT The weight of the evidence of record is approximately in equipoise as to whether the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU for the period since July 13, 2017 have been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.3, 4.130, Diagnostic Code (DC) 9400. REASONS AND BASES FOR FINDING AND CONCLUSION On last review of this case, the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. See 01/24/2020 BVA Decision. Entitlement to a TDIU for the period since July 13, 2017 Legal Requirements Total disability rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability, provided that the person has one service-connected disability ratable at 60 percent or more; or as a result of two or more service-connected disabilities, provided that the person has at least one disability ratable at 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the above-stated percentages are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 4.16. In order to establish entitlement to TDIU, there must be impairment so severe that it is impossible to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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. 38 C.F.R. §§ 3.341, 4.16, 4.19. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims (Court) promulgated a definition of substantially gainful employment as that term is used in 38 C.F.R. § 4.16(a). The Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one non-economic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Court specifically noted that while it looked to the standards and guidelines used by the Social Security Administration (SSA), it was not adopting or imposing those guidelines on VA. Ray, 31 Vet. App. at 72. Discussion Service connection is currently in effect for an acquired mental disorder, rated 70 percent disabling; tinnitus, rated 10 percent disabling, a skin disorder, and bilateral hearing loss, both rated noncompensable. The Veteran's total combined rating has been 70 percent since July 13, 2017. See 12/02/2020 Rating Decision Codesheet. Hence, he meets the requirements for his claim to be considered under the Schedular criteria. 38 C.F.R. § 4.16(a). The Veteran testified that he retired near the end of 2018. See 11/07/2019 Hearing Testimony; 06/04/2019 SSA/SSI. He has significant disabilities which are not service connected; specifically, a chronic low back disability and sleep apnea. See 12/02/2020 Rating Decision Codesheet. The Board finds that the evidence of record shows that any physical inability to meet the demands of substantially gainful employment are due to those disabilities. See, e.g., 08/25/2020 SSA/SSI, 1st Entry. Hence, the Board finds that this appeal must be decided on the basis of whether the Veteran is mentally capable of meeting the demands of substantially gainful employment. See Ray, 31 Vet. App. 58. The Veteran's formal claim for a TDIU reflects that he has acquired a GED, and that his prior occupation was a forklift operator for over 35 years, work he was able to do alone and with minimal contact with others. See 08/18/2020 VA 21-8940. The SSA records reflect that the Veteran did not supervise anyone, and that he had to fill out and submit a report at the beginning and end of each workday. See 08/25/2020 SSA/SSI, 1st Entry, P. 6. VA examination reports reflect that there is no work impairment due to the Veteran's skin and hearing loss/tinnitus disabilities. See 07/21/2021 C&P Exam, 4th and 7th Entries. The VA mental disorder examination report (07/21/2021 C&P Exam, 3rd Entry) reflects that the examiner diagnosed an unspecified anxiety disorder and determined that it manifested with the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, flatten effect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and obsessional rituals which interfere with routine activities. Id. P. 7. (Continued on the next page) The obsessional ritual to which the examiner alluded was that the Veteran's report of constant scratching and skin picking of his head beginning 4 or 5 years earlier, and that he wore a cloth head covering during the examination. Id. P. 1. The Veteran's service-connected skin disability is seborrheic dermatitis of the scalp. See 07/21/2021 C&P Exam, 6th Entry, P. 2, 3. The mental examiner did not clearly indicate whether the Veteran's constant scratching and skin picking was due to his anxiety or to the skin disability itself. The inference appears to be the former. Mental status examination revealed the Veteran as alert and oriented to person, place, time and purpose. He was appropriately dressed and groomed, and he wore a cloth head covering. Psychomotor behavior was normal, eye contact appropriately focused, and speech was average in rate and tone. Some confusion and concentration difficulty were seen, and his mood was anxious, with congruent and blunted affect. See (07/21/2021 C&P Exam, 3rd Entry, P. 8. The examiner noted further that the Veteran is competent to manage his VA compensation, and that diagnostic tests administered as part of the examination indicated that the Veteran had moderate depression and severe anxiety. Id. P. 8, 11. The mental examiner opined that the work impairments of the Veteran's mental disability are: difficulty attending to or is easily distracted from the task at hand; difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task; has intrusive thoughts which interfere with the ability to stay focused on the task at hand; has significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others; and, he cannot tolerate being around other people in any setting for more than a few minutes. See 07/21/2021 C&P Exam, 2nd Entry. The Board notes the Brief on the Veteran's behalf by his attorney, wherein he asserts that the findings of the July 2021 VA examination support a finding of unemployability. The attorney also repeats his earlier assertions that the SSA records that note how the Veteran's wife must help him remember his medications, etc., also support a favorable finding. See 09/01/2021 Third Party Correspondence. As concerns the wife's assistance to the Veteran and her comments on his concentration deficits, a close reading indicates that they are due to the Veteran's constant low back pain and his somnolence due to his sleep apnea. Nonetheless, the Board finds in the Veteran's favor on another basis. As noted earlier, the work impairments noted by the VA examiner are significant, especially the concentration and focus deficits. The examiner did not comment on the impact, if any, of the Veteran's non-service-connected disabilities. Hence, the Board is constrained to find that they are due to the Veteran's mental disability. Mitleider v. Brown, 11 Vet. App. 181 (1998). There is no indication that the Veteran is computer literate. Nonetheless, even considering the current Pandemic-driven environment of telework, the Board finds that the Veteran's inability to concentrate and focus on any task at hand renders him incapable of meeting the mental demands of substantially gainful employment. Ray, 31 Vet. App. 58. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.