Citation Nr: 21069527 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-37 598 DATE: November 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities render him unable to engage and retain substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1988 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2014 and January 2021 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021 and September 2021, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in October 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to TDIU. As an initial matter, the Board notes that the Veteran's claim for TDIU was first adjudicated by the AOJ in January 2021, and that the Veteran did not provide a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) until March 2021. However, the Veteran's claim for TDIU was raised during the course of the Veteran's appeal for an increased initial disability rating for his posttraumatic stress disorder (PTSD); an inferred claim of entitlement to TDIU was noted on November 6, 2020. A TDIU claim is part and parcel of an increased rating claim being referred to the RO, and vice versa. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also observes that the Veteran received special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) for the rating period from July 6, 2021 through August 31, 2021 based on a single service-connected disability rated as 100 percent disabling and additional service-connected disabilities independently ratable at 60 percent or more. During that time period, the Veteran was in receipt of a temporary total evaluation due to hospitalization over 21 days for his service-connected PTSD. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). 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 include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2020). The Veteran seeks entitlement to TDIU based on his service-connected disabilities. The Veteran submitted a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in March 2021. The Veteran indicated that he had a high school education and stopped working as an inventory specialist on June 20, 2019. The Veteran indicated that he stopped working due to his service-connected disabilities. The Veteran also indicated that he has not sought employment or additional training since becoming too disabled to work. A June 2019 correspondence indicates that the Veteran was separated from his position as an Inventory Purchasing Specialist due to an off-the-job injury and his medical conditions. The Veteran is in receipt of a 70 percent disability evaluation for PTSD with alcohol use disorder, effective April 21, 2011; a 40 percent disability evaluation for thoracolumbar degenerative disease with scoliosis, effective April 21, 2011; a 20 percent disability evaluation for right flat foot with metatarsalgia and degenerative arthritis of the metatarsal and phalangeal joints, effective April 21, 2011; a 20 percent disability evaluation, per shoulder, for rotator cuff syndrome, effective March 29, 1999; a 10 percent disability evaluation, per knee, for degenerative joint disease, effective April 21, 2011; a 10 percent disability for cervical strain, effective April 21, 2011; a 10 percent disability evaluation for left foot degenerative arthritis, effective April 21, 2011, and a 10 percent disability evaluation, per hip, for limitation of extension, effective April 21, 2011. The Veteran is also in receipt of noncompensable disability evaluations for left leg eczema, osteoarthritis of the right with thigh impairment, left hip strain with thigh impairment, osteoarthritis of the right hip with limitation of flexion, and osteoarthritis of the left hip with limitation of flexion. The Veteran has a combined disability evaluation of 100 percent, effective April 21, 2011. See 38 C.F.R. § 4.25. Given that disabilities of both lower extremities and disabilities of both upper extremities are considered one disability under 38 C.F.R. § 4.16(a)(1), the Veteran met the schedular criteria for TDIU under section 4.16(a) effective April 21, 2011. VA's General Counsel has 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 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; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities render the Veteran unable to obtain or sustain substantially gainful employment for the rating period on appeal. The Board acknowledges that the October 2020 VA back, PTSD, and shoulder examination reports did not address whether the Veteran's service-connected disabilities rendered him unemployable. Nevertheless, the March 2021 back and PTSD examination reports reflect that the Veteran is unable to sustain a gainful occupation even with reasonable accommodations; the March 2021 VA PTSD examiner found that the Veteran was capable of part-time sedentary or semi-sedentary work in spite of his PTSD; according to the VA examiner, the Veteran's mental health symptoms affect his motivation, concentration skills, ability to complete tasks in a timely manner, and his ability to work in large groups, but his chronic pain affects his ability to engage in heavy lifting and prolonged sitting and standing. The VA examiner noted that the Veteran was forced to leave his job due to his physical disorders. However, the March 2021 VA back examiner found that the Veteran's ability to function in an occupational environment is significantly to severely limited by the worsening of his disabilities. The VA examiner noted that the Veteran's pain is not well-controlled; the VA examiner stated that the Veteran's tendency to self-medicate is indicative of significant impairment, regardless of whether the Veteran's pain in psychological or physiological. The VA examiner also noted that the Veteran's service-connected back disability affects the ability to do even sedentary work. Moreover, the Veteran's October 2020 VA PTSD examination report indicates that the Veteran's service-connected PTSD essentially renders him unable to obtain to obtain and maintain gainful employment; the VA examiner noted that the Veteran had occupational and social impairment with deficiencies in most areas, including work. Likewise, a review of the Veteran's treatment records, and additional VA examination reports indicates that the Veteran's service-connected disabilities, in combination, are productive of symptomatology that contribute to his difficulty performing occupational tasks. In this regard, the Board notes that the Veteran's VA examination reports and treatment records indicate that the Veteran cannot stand or walk for prolonged periods, lift items weighing more than 10 pounds, or perform certain repetitive tasks, and that the Veteran experiences depression, chronic sleep impairment, difficulty establishing and maintain effective relationships, disturbances of mood and motivation, and negligent personal hygiene due to his service-connected mood disorder. As such, the Board finds that the evidence of record reflects symptomatology that supports the Veteran's contentions that he is unable to perform the physical and mental acts required to be employable. See Van Hoose, supra. As a result, the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.