Citation Nr: 21074277 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 20-01 247 DATE: December 14, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability (TDIU) due to service-connected unspecified depressive disorder effective is granted. FINDING OF FACT The Veteran's service-connected unspecified depressive disorder renders him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2013 to August 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). These issues have been before the Board previously, most recently in March 2020. In its March 2020 decision, the Board granted a 70 percent disability evaluation for the Veteran's service-connected unspecified depressive disorder but did not address the issue of entitlement to a TDIU. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In January 2021, the parties agreed to a Joint Motion for Partial Remand (JMPR). The Court vacated the part of the Board's decision which did not address the reasonably raised issued of entitlement to a TDIU and remanded the matter to the Board for action consistent with the JMPR. Specifically, the matter was remanded because the parties agreed that the Board erred in not providing an adequate statement of reasons and bases regarding whether the Veteran's claim warranted a TDIU and remanded this issue for readjudication consistent with the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The issue is now before the Board. The Veteran testified at an August 2021 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. TDIU A total disability rating for compensation purposes 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 single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income. Marginal employment may be held to exist, on a facts-found basis including, but not limited to, employment in a "protected environment" such as a family business or sheltered workshop when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); Cantrell v. Shulkin, 28 Vet. App. 382 (2017). Basic eligibility is established where there is one service-connected disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. For purposes of TDIU, a "single disability" includes disabilities of the upper or the lower extremities, disabilities arising from a common etiology or incident, disabilities affecting a single body system, disabilities incurred in combat, or disabilities related to being a Prisoner of War. 38 C.F.R. § 4.16 (a). The Veteran meets the schedular criteria for TDIU for the entirety of the appeal period due to his unspecified depressive disorder evaluated as 70 percent disabling. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). On the Veteran's Application for Increased Compensation Based on Unemployability, VA 21-8940, received in September 2021, the Veteran indicated that he last worked in September 2021. The Veteran last worked as a part-time sand blaster mechanic. He indicated that the symptoms of his depression prevent him from securing or following any substantially gainful occupation. He completed one year of college. At his hearing in August 2021, the Veteran testified that he has not been able to obtain or keep a substantially gainful job since his separation from service. The Veteran testified that he has had multiple jobs since his separation from service, none of which have lasted one year. He testified that his first job was at a Dollar Tree Store and lasted for approximately 4 months. He stopped showing up and was fired. He then worked for a friend for a couple of months doing home improvement. The Veteran attempted to do home improvement work on his own because he found that he had difficulty working with others. However, he was unable to maintain motivation and a schedule working on his own. In 2017, he worked for a few months as a part time childcare worker at a church. His wife started working at a Dollar Tree store in 2018 and he started working there in 2018. His wife allowed him to show up late for work and was able to protect him. However, when she stopped working there, the Veteran did as well. He continued to have attendance issues. The Veteran testified that he has learned to quit jobs before he gets fired. He is aware of when he starts to have issues with a job when he can't handle going to work, when going to work makes him angry or so depressed that he wants to hurt someone or himself. He testified that after Dollar Tree, he worked at a factory operating machinery and was written up several times for being late of for not being able to come to work. He quit that job because he couldn't take it anymore, and was very close to being fired. He was suspended twice before he quit. At the time of the hearing, the Veteran was starting to work with his brother in sandblasting. The Veteran testified that his biggest issue is actually getting up out of bed and getting to the job. He testified that he has a hard time getting along with others and does not know how to deal with lazy people at all. He does not like being micromanaged. The Veteran's wife testified that she has a very difficult time getting the Veteran out of bed in the morning. She has tried yelling, bringing him coffee, and setting alarms all to no avail. The Veteran testified that he went back to school which was self-paced and earned the equivalent of an associates degree. He is struggling to work with Voc Rehab. He is currently taking medications which he thinks are helping him. Sleep remains a major problem for him as he sleeps in one hour increments that total about 4 to 6 hours a night. He experiences nightmares and racing thoughts. The Veteran experiences memory issues. His wife testified that she has taken over all household duties and chores. Based on the available evidence of the record, the Board finds that the Veteran is unemployable due to his service-connected unspecified depressive disorder. The Veteran has worked in a variety of positions since his discharge from service. His last job was with a sandblasting company his brother helped him get. Although the Veteran testified that he has an associates degree, and may have transferable skills, the Board finds that his unspecified depressive disorder renders him unable to adapt to the stresses and demands of a typical work environment. The symptoms the Veteran experiences due to his to depression and insomnia are severe and render him incapable of maintaining substantially gainful employment. Accordingly, as the Veteran is unemployable due to service-connected unspecified depressive disorder, entitlement to TDIU is warranted. The Board notes that although the grant of TDIU based on a single service-connected disability triggers consideration of entitlement to special monthly compensation (SMC) based on statutory housebound stratus, the Veteran currently does not currently meet the requirements for statutory housebound SMC. See 38 C.F.R. § 3.350(i)(1). The Veteran does have a single disability rated totally disabling, as his TDIU is based on only his service-connected depressive disorder. However, he does not have additional disabilities totaling a combined 60 percent or more. Tinnitus is rated only 10 percent disabling. See Akles, supra; Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.