Citation Nr: A21020180 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 210203-170208 DATE: December 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran meets the schedular percentage requirements for TDIU, and his service-connected disabilities at least as likely as not prevent him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision issued in accordance with the provisions of the Appeals Modernization Act. The Veteran submitted a timely notice of disagreement (VA Form 10182) and requested review of his appeal on the Board's hearing docket. The Veteran appeared at hearing before the undersigned in December 2021. A transcript of the hearing will be obtained and associated with the claims file at later date. In light of the full grant of the benefit sought in this appeal, the Veteran's appeal is being adjudicated in accordance with the Board's "One Touch" program. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more 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 C.F.R. § 4.16(a). The relevant issue is not whether the claimant is unemployed or has difficulty obtaining employment, but whether the claimant can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Yet, a finding of total occupational impairment is not necessary to establish entitlement to TDIU. See 38 C.F.R. § 4.16(a) (indicating TDIU may be assigned in cases of marginal employment). In determining whether unemployability exists, consideration may be given to the claimant's level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Here, the Veteran currently meets the schedular percentage requirements for TDIU. He has a combined 80 percent rating with his service-connected acquired psychiatric disorder, to include an adjustment disorder with mixed anxiety and depressed mood, being rated as 50 percent disabling. The only issue that remains is whether the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. The Board finds the Veteran's service-connected disabilities at least as likely as prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. The record establishes the Veteran has not worked in several years. The Veteran asserts this is primarily due to severe back problems. The Board notes the Veteran is entitled to service connection for a back disability, which is rated as 20 percent disabling, with radiculopathy affecting both lower extremities rated as 10 percent disabling bilaterally, resulting in significant impairment in his ability to perform physical labor, as noted by a September 2020 VA examiner. The Veteran also has significant mental impairment due to his service-connected psychiatric disability, to include symptoms such as depressed mood, suspiciousness, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, all of which affect his ability to perform tasks required in a sedentary work environment. When considering the combined effects of this physical and mental impairment, the Board is unable to conclude the Veteran can perform the physical and mental acts required in positions that would rise above marginal employment. The Board cannot deny TDIU without producing evidence, as distinguished from mere conjecture, showing the claimant can perform work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). There is no such evidence in this case. To the contrary, the record establishes the nature and severity of the Veteran's service-connected disabilities at least as likely as not prevent him from engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him. Resolving reasonable doubt in the Veteran's favor, the Board finds TDIU is warranted. The AOJ will assign the effective date in the first instance to ensure the Veteran is afforded due process. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.