Citation Nr: 21076196 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-26 790 DATE: December 22, 2021 ORDER From June 5, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a disability rating in excess of 50 percent for major depressive disorder with posttraumatic stress disorder (PTSD) is remanded. Entitlement to a TDIU prior to June 5, 2020 is remanded. FINDING OF FACT The Veteran met the criteria for TDIU as of June 5, 2020 and the probative evidence demonstrates that the Veteran's service-connected disabilities as likely as not preclude substantially gainful employment. CONCLUSION OF LAW From June 5, 2020, the criteria for entitlement to 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 served on active duty from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue of entitlement to a TDIU has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As such, this issue has been added to the claim. 1. Entitlement to TDIU from June 5, 2020 VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 age or to the impairment caused by nonservice-connected disabilities. Id. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, 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 disability, the disability is rated 60 percent or more, or if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). From June 5, 2020, service connection was in effect for major depressive disorder with PTSD, rated as 50 percent disabling; migraine headaches, rated as 30 percent disabling; chronic cough, rated as 10 percent disabling; and irritable bowel syndrome, rated as 10 percent disabling. The Veteran's combined rating was 70 percent as of June 5, 2020. Thus, the schedular criteria for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met from that date. Upon review of the record, the Board finds that the probative evidence of record reflects that the combined effects of the Veteran's service-connected disabilities at least as likely as not render her unable to secure and follow substantially gainful employment from June 5, 2020. During the April 2021 Board hearing, the Veteran testified that she has not worked since July 2014, at which time she suffered a nervous breakdown while working as a nurse. During an August 2020 VA examination, the Veteran reported that after using all of her time off following the nervous breakdown, she asked to be transferred to another area but was denied. The examiner found the Veteran's major depressive disorder with PTSD caused disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; depressed mood; anxiety; suspiciousness; panic attacks; and chronic sleep impairment. In addition to the Veteran's major depressive disorder with PTSD, the Veteran's service-connected chronic cough impacts her ability to perform the physical tasks required of employment. During a February 2021 VA respiratory conditions examination, the examiner indicated that the Veteran's chronic cough impacts her ability to work and interferes with her daily activities, ability to exercise, and talking on the telephone. Moreover, on her December 2020 headache examination, the Veteran reported having headaches every three weeks that last all day, and that cause nausea, vomiting, and sensitivity to light. In light of the above and after resolving all doubt in favor of the Veteran, the Board finds that the Veteran is unemployable based on the combined effects of her service-connected disabilities from June 5, 2020. Accordingly, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to a rating in excess of 50 percent for major depressive disorder with PTSD 3. Entitlement to TDIU prior to June 5, 2020 The Board finds that additional development is needed prior to adjudication of these claims. The Veteran contends she stopped working after having a nervous breakdown. She worked as a nurse at a VA medical center and indicated she receives disability retirement benefits. Records associated with her application for disability retirement should be requested on remand. During the Board hearing, the Veteran's representative mentioned they had an independent medical evaluation of her psychiatric disability. However, no such evaluation appears to be of record. They are asked to resubmit the report. These matters are remanded for the following action: 1. Ask the Veteran to provide the names and addresses of all private medical care providers who have recently treated her for her mental health disability. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After securing any necessary release, request the Veteran's records concerning her disability retirement benefits from her prior employer. 3. Ask the Veteran and her representative to resubmit the private mental health evaluation that was mentioned during her Board hearing. 4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.