Citation Nr: 21072662 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-41 270A DATE: December 3, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 5107; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1982 to July 1982; June 1989 to May 1990; and September 1990 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board. In a November 2020 decision, the Board denied the claim currently on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veteran Claims (Court). In a May 2021 Order, the Court granted a Joint Motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the Joint Motion. Entitlement to a TDIU The Veteran asserts that his service-connected disabilities are of such severity so as to prevent him from obtaining and maintaining substantially gainful employment. At the outset, the Board notes that for the entire period on appeal, the Veteran has had a combined rating of at least 70 percent, with a single disability rated 40 percent or higher. Therefore, the Veteran has met the schedular criteria for assignment of a TDIU for the entire period on appeal. 38 C.F.R. § 4.16. Therefore, the remaining question for the Board is whether the Veteran's service-connected psychiatric and right great toe disabilities prevent him from obtaining and maintaining gainful employment. A review of the record shows that the Veteran last worked full-time in February 2015. The Veteran has experience and certifications as a mechanic and two years of college education. At a March 2012 VA examination, the examiner noted that the Veteran would handle his irritability in the workplace by keeping quiet. A March 2013 Notice of Discipline from a former employer of the Veteran's details the reasons for the Veteran's termination. Amongst them, the Veteran had taken a citizen's gun without permission, made disrespectful and harassing comments regarding someone's weight, and treated numerous fellow employees disrespectfully. In April 2013, the Veteran reported being laid off from his job due to performance and behavior issues. October 2014 VA treatment records note the Veteran as employable. The Veteran reported recently quitting a job because he was tired of working while his significant other stayed at home all day; he also admitted that recent legal issues influenced his decision to stop working. In an October 2016 VA Form 28-1902b, the Veteran reported that he stopped working as a marine mechanic in May 2016 due to swollen feet and wrist pain. VA treatment records from November 2018 and December 2018 note that the Veteran is employed as a marine mechanic. A July 2019 VA treatment record notes that the Veteran still works with boats. In an August 2020 opinion, Vocational Consultant K.M. opines that it is more likely than not that the Veteran has been unable to secure and follow any substantially gainful employment to include unskilled sedentary employment since at least 2015 due to his service-connected anxiety and right foot condition. In providing a rationale, K.M took note of the Veteran's difficulty with interacting with co-workers and supervisors and noted that his psychological symptoms impacted his ability maintain his concentration and attention. K.M. also opined that the Veteran's employment as a marine mechanic was not substantially gainful employment, as the Veteran did not earn above the federal poverty level. Based on the limitations described above, the Board finds that the manifestations of the Veteran's service-connected disabilities at least as likely as not prevent him from obtaining and maintaining gainful employment consistent with his education and industrial experience. In fact, the Veteran's industrial experience appears to have required a fair amount of physical or strenuous work, or other duties that would be significantly limited by the effects of his service-connected disabilities. (Continued on the next page) Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, Associate 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.