Citation Nr: 21072523 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-27 055 DATE: December 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran's service-connected disabilities precluded 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 had active service with the United States Army from July 1967 to September 1968. The matter comes before the Board of Veterans' Appeals (Board) from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b); 38 C.F.R. § 20.800(c). The Board apologizes to the Veteran for the delays in the full adjudication of his claim. It is also valuable to note that the Veteran has already been found to be 100 percent disabled by VA, effective February 27, 2019. In this case, the Board is only dealing with the limited outstanding issue that it must address under the law. 1. Entitlement to a total disability rating based on individual unemployability The Veteran asserts, in substance, that his service-connected disabilities prevent him from securing or following substantially gainful employment. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 or her age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more 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. See 38 C.F.R. § 4.16(a). The Veteran is currently service connected for the following: Right lower extremity, sciatic nerve, complete paralysis, rated as 80 percent disabling from September 7, 1968. Left lower extremity sciatic nerve neuropathy associated with diabetes mellitus, type II, rated as 20 percent disabling from February 27, 2019. Posttraumatic stress disorder (PTSD) rated as 30 percent disabling from August 24, 2006, and 50 percent disabling from February 27, 2019. Bilateral upper extremity peripheral neuropathy associated with diabetes mellitus, type II, rated as 40 percent disabling on the right side and 30 percent disabling on the left side, from February 27, 2019. Diabetes mellitus, type II, rated as 20 percent disabling from March 13, 2008. Bilateral hearing loss, rated as 20 percent disabling from May 31, 2016. Tinnitus, rated as 10 percent disabling from August 24, 2006. Left thigh scar, abdominal shell fragment wound (SFW) residuals, and right foot diabetic ulcer residuals, rated as 0 percent disabling. The Veteran's total combined disability rating is 90 percent from August 24, 2006 and 100 percent effective February 27, 2019. Accordingly, the Board finds that the schedular requirements for a TDIU are met. See 38 C.F.R. § 4.16(a). With the above laws and regulations in mind, the Board notes that in his June 2016 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), the Veteran reported that he has not worked full-time and became too disabled to work because of his service-connected disabilities in June 2011. As to his work history, the Veteran reported that he worked as an agronomy center manager from December 1984 until June 2011. As to his education, the Veteran reported that he completed two years of college as his highest level of education. In any TDIU claim, the Board must consider whether the adverse symptomatology caused by the Veteran's service-connected disabilities are not adequately compensated for by the rating criteria. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In this regard, the Board has reviewed the record in detail and finds the Veteran's service-connected disabilities render him unemployable. Given the best evidence of record in this case, the Board finds, with affording the Veteran the benefit of the doubt, the evidence shows that his service-connected disabilities are not adequately compensated for by the rating criteria because the occupational impairment caused by them precludes him from securing and following a substantially gainful occupation given his prior vocational history (i.e., one industry for 27 years), work experience (i.e., sedentary/office), and education (i.e., 2-years of college). See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.1, 4.16(a); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the Board finds that the Veteran's service connected problems, caused chiefly by his service-connected right lower extremity, sciatic nerve, complete paralysis (80 percent disabling), but also by his posttraumatic stress disorder (PTSD) (50 percent), bilateral upper (40 percent right and 30 percent left) and left lower (20 percent) peripheral neuropathy, diabetes mellitus, type II (20 percent), bilateral hearing loss (20 percent), and tinnitus (10 percent), when combined with his education (i.e., an associate's degree) and work experience (i.e., office work) would prevent him from being able to secure and follow a substantially gainful occupation in a sedentary or non-sedentary employment. Accordingly, the Board finds that the criteria for a TDIU have been met and the claim 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. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.