Citation Nr: 21077316 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-45 381 DATE: December 29, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 50 percent for depressive disorder is remanded. FINDING OF FACT The evidence shows that the Veteran is 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 TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 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 July 1954 to June 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran offered testimony at a Board hearing before the undersigned Veterans Law Judge in December 2021. This decision is being prepared under the Board's "one-touch" program, and a transcript of the Veteran's hearing is not yet available. The transcript will be added to the Veteran's file under the normal course of business. Because the appeal is being granted and remanded, there is no prejudice to the Veteran. 1. Entitlement to a TDIU. The Veteran filed a TDIU claim September 2017. The Veteran is service connected for bilateral hearing loss, depressive disorder, and tinnitus. He contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Under the applicable criteria, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16 (a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). See 38 C.F.R. § 4.16 (b). Here, as of May 2017, the Veteran is service connected for bilateral hearing loss, evaluated as 50 percent disabling; tinnitus, evaluated as 10 percent disabling; and depressive disorder, evaluated as 50 percent disabling. Therefore, his combined rating is 80 percent, and he meets the schedular criteria for a TDIU. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides 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" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted, in September 2017, the RO received the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In the application, the Veteran indicated that he worked in training from 2000 to 2012, but he became too disabled to work in 2012. In response to inquiries as to whether he left his last job/self-employment because of his disability, he replied yes. However, as to whether he received/expected to receive disability retirement benefits and did he receive/expect to receive Worker's Compensation benefits, he replied no. The Veteran indicated that he graduated from high school and did not have any additional education or training since becoming too disabled to work. However, he also noted that he had not tried to obtain employment since he became too disabled to work. It is acknowledged that in February and October 2017 VA opinions, an audiologist found that the Veteran's hearing loss and tinnitus would not affect his ability to function in an occupational environment. Also, in a May 2018 VA opinion, the examiner concluded that the Veteran's hearing loss and tinnitus would not prohibit him from securing or maintaining employment. However, as rationale, the May 2018 VA examiner stated that his hearing loss would impact his ability to function in critical listening situations. The examiner also stated that the Veteran was able to communicate with the examiner and other healthcare professionals. She further stated that the Veteran's tinnitus could affect concentration but it has not been found to impact the ability to function in most employment situations. The examiner added that the impact from the Veteran's depression from hearing loss would have to be determined by a mental health provider. In a February 2018 VA mental health examination, the examiner indicated that the current psychiatric symptomatology for which he was service connected would be expected to cause moderate occupational impairment because of his anxiety, depression, fatigue for lack of sleep, irritability, and lack of energy. However, the examiner also checked that the Veteran's depression caused difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work and work-like settings. In an October 2018 VA treatment note, a VA staff psychologist (Dr. L.A.) and psychiatrist (Dr. E.B.) noted that that the Veteran was service connected for major depressive disorder. The Veteran reported feeling less anxious after stopping his medication (Buspar), but he still felt confused. Later that same month, Dr. L.A. concluded that the Veteran was no longer able to work. As rationale, she explained that the Veteran's inability to hear worsened his depression and increased his anxiety. Dr. L.A. further noted that depression and anxiety decreased his cognitive function. The Veteran required assistance to function and his mood affected his function. Therefore, Dr. L.A. concluded that anxiety and depression worsened by hearing loss and impaired inability to communicate as well as any stressors rendered the Veteran unable to engage in meaningful employment. Notably, the question of employability is ultimately a legal one, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). At the outset, the Board notes that there is positive and negative evidence of record. The record shows that the Veteran worked in training, that he did leave his employment because of disability, that he did not receive disability retirement benefits, and that he has not tried to obtain employment. The Board is also cognizant of the 2017 and 2018 VA opinions noting that the Veteran's hearing and tinnitus impairments do not prevent him from obtaining gainful employment. However, the examiners did note potential work-related problems because of his hearing loss and tinnitus. The examiners did not address the Veteran's depressive disorder. Moreover, an October 2018 VA treatment record shows that VA staff clinicians concluded that the Veteran's anxiety and depression worsened by hearing loss and impaired inability to communicate as well as any stressors rendered the Veteran unable to engage in meaningful employment. Also, at his December 2021 Board hearing, the Veteran testified that his depression caused concentration problems, panic attacks, social relationship problems, and impulse control issues. He stated that he stopped working because he could not think logically or strategically, and he had memory problems. Given the Veteran's work history and the functional impairments resulting from his service-connected bilateral hearing loss, tinnitus, depressive disorder, the Board will resolve reasonable doubt in his favor and award entitlement to TDIU. Based on the evidence presented in this case, the Board finds that the evidence is in equipoise and therefore supports a finding that the functional impairment associated with the Veteran's disabilities is of such nature and severity as to preclude substantially gainful employment. Entitlement to an award of TDIU is granted. 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 depressive disorder. The Veteran seeks a higher rating for his service-connected depressive disorder. He was most recently afforded a VA examination for such disability in February 2018. However, in his notice of disagreement, he stated that the 2018 examiner simply referenced a 2017 VA examination. Moreover, at the December 2021 Board hearing, he reported that his depression caused concentration problems, panic attacks, social relationship problems, memory problems, and impulse control issues. As such, the record indicates that the Veteran's depressive disorder may have worsened since his last examination. Therefore, a remand is necessary in order to afford the Veteran a VA examination so as to determine the current nature and severity of his depressive disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected depressive disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner(s) as part of the examination. All tests, studies, and evaluations should be performed as deemed necessary by the examiner(s), and the results of any testing must be included in the examination report. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.