Citation Nr: 21077403 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-54 706 DATE: December 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities prevent him from engaging in gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to January 1993. The Veteran testified at a Board of Veterans' Appeals (Board) hearing in July 2021 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. TDIU A Veteran will be entitled to TDIU upon establishing that they are in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from their service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19 (2017). To qualify for a total rating for compensation purposes on a schedular basis, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities-provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). See also Faust v. West, 13 Vet. App. 342, 356 (2000). Marginal employment (for purposes of 38 C.F.R. § 4.16) generally shall be deemed to exist when a veteran's earned annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. 38 C.F.R. § 4.16 (a). Substantially gainful employment contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). Whether service-connected disabilities render a veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care providers. For a veteran to prevail on a claim for TDIU, the record must reflect circumstances that place the veteran's case in a different category than other veterans with an equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran is seeking entitlement to TDIU and asserts that his service connected disabilities, particularly his bipolar disorder prevent him from maintaining substantially gainful employment. After a review of the evidence of record, the Board finds that the Veteran is entitled to TDIU. As an initial matter, the Board notes that the Veteran meets the schedular requirements under § 4.16 for TDIU during the period on appeal. Specifically, the Veteran is service connected for bipolar disorder with substance use disorder and depressed mood at 70 percent, and tinnitus at 10 percent. His combined rating for the entire period on appeal is 70 percent. The Veteran has stated in both his hearing testimony and in documents that he has not been employed since 2014. His records show that he has a high school diploma, and he has indicated that he attended trade school for HVAC systems but could not complete this training due to his service-connected disabilities. The Veteran's records also indicate that he has had issues with substance abuse and has also been arrested 12 times since 2013. Additionally, he has indicated that he has had over 20 jobs since he left the military, all that he was fired from or quit following issues arising from his service-connected disabilities. During the period on appeal, the Veteran has been afforded VA examinations in March 2015, and April 2018. At the March 2015 examination, the Veteran stated that he keeps to himself and has little motivation for social interactions apart from some family members. The Veteran was noted to be living with his parents and not currently employed. The examiner noted that the Veteran's last inpatient admission was in 2010 due to substance abuse problem. While the Veteran denied any suicidal or homicidal ideation, he did report dysphoria, insomnia, and decreased motivation. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity, and would not result in his inability to maintain substantially gainful employment. Next, at the April 2018 examination, the Veteran's symptoms were noted as depressed mood, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, and neglect of personal hygiene. The examiner opined that the Veteran's symptoms cause occupational and social impairment with reduced reliability and productivity. There was no opinion provided on the Veteran's potential to maintain substantially gainful employment in the report. A disability benefits questionnaire completed in December 2017 notes that the Veteran is unemployed, and his symptoms cause total occupational and social impairment. While there is no opinion specifically addressing the Veteran's ability to maintain gainful employment, a finding of total occupational and social impairment would indicate that he would be unable to do so. Another examination and report were provided by a private physician retained by the Veteran in September 2015. The physician indicated that they reviewed the Veteran's medical records and had a detailed patient history. The Veteran's symptoms were listed as insomnia, fatigue, poor focus and concentration, disturbances of motivation, loss of interest, self-isolation, low self-esteem, and hallucinations. The physician noted that the Veteran had not been employed since 2013 and experiences manic episodes. The physician concluded that the Veteran cannot obtain or maintain gainful employment, including that of a sedentary nature, that he should be considered to be 100 percent disabled, and opined that there would be no employer who would hire the Veteran. The Board has also considered the statements from the Veteran and his wife regarding his inability to maintain employment. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. As laypersons, the Veteran and his wife are competent to report symptoms which are apparent to them through their senses, as well as the effects these symptoms have on the Veteran's ability to perform tasks, interact with others, or engage in workplace duties. Thus, when the positive and negative evidence is weighed, the Board finds that it stands in relative equipoise, thus, entitlement to TDIU is warranted. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim is granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor