Citation Nr: 21069643 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-51 840 DATE: November 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), for the relevant periods on appeal, effective August 31, 2018, is granted. FINDING OF FACT The evidence of record indicates that the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU, for the relevant periods on appeal, effective August 31, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 3.401, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1977 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's November 2018 VA Form 9 he specifically indicated he is only appealing the above-listed issue of entitlement to a TDIU. As such, this is the only issue currently before the Board. In November 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). TDIULegal Criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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 or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as "one disability" for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). A veteran's age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. Analysis As an initial matter, the Board observes that the Veteran has met the schedular criteria for TDIU from at least August 31, 2018. For the relevant periods, on appeal, the Veteran had a combined schedular rating of 70 percent disabling, which increased to 80 percent disabling effective January 29, 2021. During the relevant periods on appeal, the Veteran's service-connected disabilities were as follows: ocular histoplasmosis syndrome with disciform scar in the right eye and scotoma in the left eye at 40 percent disabling (increased to 60 percent disabling on August 31, 2018); generalized anxiety disorder with panic attacks at 30 percent disabling; and starting January 29, 2021, tinnitus at 10 percent disabling and bilateral hearing loss at a noncompensable 0 percent rating. Based on the evidence, the Board finds that the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment. The Veteran has not worked since his last employment in manufacturing ended in April 2016. See July 2016 VA Form 21-8940 Application for Increased Compensation Based on Unemployability; see also July 2016 VA Form 21-4192 Request for Employment Information. The Board further notes that this has been the Veteran's sole employment since 1997. This job, and virtually any other form of employment, would require the Veteran to be able to attend normal workday hours, as well as interact and communicate effectively with others. Additionally, the Veteran has four years of high school education and denied any additional education or training after becoming disabled. The Veteran's medical records reflect significant mental and physical limitations due to his service-connected disabilities. These include decreased vision, inability to drive, inability to read due to vision loss, inability to see fine detail up close, difficulty hearing in the presence of background noise, difficulty understanding speech on a telephone, depressed mood, anxiety, near continuous panic and depression, impairment of memory, disturbances of motivation and mood, sleep impairment, and fatigue. Additionally, they reflect significant social and occupational limitations. Thus, his service-connected disabilities not only caused significant work impairment but also substantially impaired his capacity to gain work experience following service. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold, the ultimate inquiry is instead on the individual claimant's ability to secure or follow that type of employment). In this case, the Board must determine the value of all evidence submitted, including medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board notes that the Veteran has been afforded multiple VA examination opinions over the years. The VA examinations come from competent examiners who support their conclusions with evidence and sound medical reasoning. As such their medical opinions meet the first and second step of the inquiry. Throughout the record the VA examiners note that the Veteran would have multiple difficulties associated with employment due to service-connected eye, psychiatric, and hearing disabilities. The Board has considered the Veteran's lay statements in support of his claim. He is competent to report symptoms such as inability to see, depressed mood, and inability to drive because it requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record, notably the VA examination reports. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. Affording the Veteran the benefit of the doubt, the Board finds that his significant impairment due to service-connected disabilities with consideration of his educational background and work history (little or no work experience outside of his employment in manufacturing), render him incapable of obtaining or retaining substantially gainful employment. As noted above, the Veteran's service-connected disabilities met the schedular requirement for TDIU beginning August 31, 2018, and the Veteran provided competent evidence addressing his symptoms and limitations. Additionally, the evidence is at least in equipoise as to whether the Veteran was unemployable due to his service-connected disabilities. Thus, the Board resolves all reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (Continued on the next page) Based on the foregoing, the Board finds that the Veteran's service-connected disabilities have prevented him from obtaining and maintaining substantial employment consistent with his educational background and work history and therefore, a TDIU is warranted effective August 31, 2018 (the date during the period on appeal when the Veteran met the schedular criteria). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.