Citation Nr: 21075060 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 13-03 825 DATE: December 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT It is at least as likely as not the Veteran's service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment consistent with his level of education and prior work experience and training. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for his entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U. S. Marine Corps from July 1967 to May 1970. This appeal to the Board of Veterans' Appeals (Board) is from a November 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board since has twice remanded this claim back to the RO, so back to the Agency of Original Jurisdiction (AOJ), for further development and consideration initially in February 2021 and again in June 2021, both times to obtain information concerning the Veteran's church work since March 2011/July 2012, such as the number of hours each week he worked, income (also as verified by his Internal Revenue Service (IRS) tax returns), and any outstanding VA treatment records since December 2020 pertinent to this claim. As well, a VA medical opinion was needed to determine the functional impact of his service-connected disabilities that, in turn, will assist this Board in determining whether he is unemployable because of them and, therefore, entitled to a TDIU. See, e.g., Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Entitlement to a TDIU The Veteran has the following service-connected disabilities and corresponding ratings for them: coronary artery disease (CAD), status post stent placement, rated at 60 percent, posttraumatic stress disorder (PTSD), rated at 50 percent, Parkinson's disease with urinary incontinence, rated at 40 percent, tremors, muscle rigidity, and stiffness of both upper extremities, rated at 20 percent each, speech impairment, rated at 10 percent, impairment of both lower extremities, rated at 10 percent each, and bilateral hearing loss, erectile dysfunction (ED), loss of automatic movements of both sides of the face, and right and left stooped posture, each rated at 0 percent (i.e., noncompensable), for a combined disability rating of 100 percent. See 38 C.F.R. § 4.25. Thus, the ratings for these disabilities meet the threshold minimum schedular rating requirements for a TDIU, as defined in 38 C.F.R. § 4.16(a). Moreover, following the Board's more recent June 2021 remand of this claim, the file was sent to a VA examiner in September 2021 for an opinion concerning the functional impact of these service-connected disabilities including when considering the economic and noneconomic factors the Board had outlined as relevant when remanding this claim. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). After reviewing the pertinent evidence in the claims file, the examiner concluded that it is at least as likely as not the Veteran's service-connected disabilities have a functional impact precluding him from engaging in substantially gainful employment. The examiner explained that the Veteran's inability in this regard is mainly due to his service-connected Parkinson's disease, which also has several complications associated with it. The Board gives this opinion a lot of probative weight owing to the evaluator's consideration of the relevant evidence and level of explanation in discussing how the Veteran's specific service-connected disabilities have a functional impact rendering him unemployable. The Board is certainly also mindful of the earlier November 2020 opinion of another VA compensation examiner conversely concluding the Veteran was still able to perform light sedentary work. However, this other opinion only considered whether the Veteran's CAD and stent placement, alone, left him unable to engage in substantially gainful activity and did not also consider the impact of several other service-connected disabilities. Accordingly, since all of them factor into this determination, the Board finds the earlier opinion less probative and certainly no more probative than the later June 2021 examiner's opinion that correctly considered all the Veteran's service-connected disabilities, i.e., their combined effect on his employability. In Geib, 733 F.3d at 1354, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that, when a Veteran is claiming entitlement to a TDIU based on the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Here, certainly when resolving all reasonable doubt in his favor, the Board finds that, absent any more probative evidence to the contrary, the Veteran's service-connected disabilities (chiefly, his Parkinson's disease and its' associated complications) render him unable to obtain and maintain employment that could be considered substantially gainful versus just marginal in comparison. 38 C.F.R. §§ 4.16, 4.18. Thus, a TDIU is warranted. 38 C.F.R. §§ 3.102, 4.3; Faust v. West, 13 Vet. App. 342 (2000). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.