Citation Nr: A21020243 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200422-84044 DATE: December 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to regulations governing the payment of monetary awards. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 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 with the United States Army from December 1987 to March 1988 and September 1988 to October 1990. He also had periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA), including a period of ACDUTRA from September 1977 to December 1977 and in February 1983. In April 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claim for entitlement to TDIU most recently addressed in a January 2020 rating decision. In April 2020, the Agency of Original Jurisdiction (AOJ) issued the supplemental claim decision on appeal, which implicitly found that new and relevant evidence had been received regarding the Veteran's claim for TDIU and denied the claim based on the evidence of record at the time of that decision. In his April 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran selected the Hearing with a Veterans Law Judge lane; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the Board hearing or within 90 days following the Board hearing. 38 C.F.R. § 20.302(a). The Veteran testified before the Board at a hearing held by the undersigned in December 2021. The Veteran waived the 90-day evidence submission period at the December 2021 Board hearing. TDIU The Veteran and his representative generally contend that the Veteran's service-connected disabilities interfere with his ability to maintain work. See April 2020 Notice of Disagreement. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The United States Court of Appeals for Veterans Claims (Court) recently held that "substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the April 2020 rating decision, the AOJ rendered favorable findings that the Veteran is not currently working and that the Veteran's service-connected disabilities meet the schedular criteria for entitlement to TDIU. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Therefore, the question remaining is whether the Veteran's service-connected disabilities (alone) render him incapable of participating in a substantially gainful occupation. Here, a balance of the evidence supports that the Veteran's service-connected disabilities substantially impact his ability to secure and engage in types of employment at any exertional level. The Veteran reported in his December 2019 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that he is too disabled to work due to all of his service-connected disabilities, to include dermatitis, left ankle, left knee, rhinitis, surgical scar, urticaria, nerve injury, and left ankle scars. He indicated he last worked full-time in November 2008 as a heavy equipment operator, and he had worked for his last employer since January 1997. He stated that November 2008 was when he became too disabled to work. His education included four years of high school and a heavy equipment operator license. Furthermore, the Veteran reported at his December 2021 Board hearing that all of his service-connected disabilities combined prevent him from pursuing gainful employment. In particular, he stated that his knee and ankle conditions make it difficult for him to get on and off of heavy equipment. He also testified that his only employment was in heavy equipment operating. In March 2020, a VA physician opined the Veteran should be considered unemployable. The VA physician stated the Veteran is unable to work due to his knee pain and ankle pain, which prevent him from standing for long periods of time. Furthermore, the knee pain and ankle pain prevent bending and squatting, and he noted that the Veteran reported he is unable to sit for long periods of time due to his knee disability. In addition, the VA physician noted that the Veteran's urticaria and dermatitis cause issues with itching and that the medications cause drowsiness. The Board affords great probative weight to the March 2020 opinion of the VA physician as the opinion is consistent with limitations assessed in the January 2020 left ankle, superficial peroneal nerve injury, and rhinitis VA examinations. Furthermore, the March 2020 opinion is consistent with the November 2020 written statement from Dr. A.B., a private physician, in which Dr. A.B. stated that the medications taken to have reasonable control of his urticaria make him very sleepy, even in the middle of the day, and affect his ability to concentrate. In addition, the March 2020 opinion is consistent with the Veteran's statements, including his December 2021 Board hearing testimony in which he reported multiple ways that his service-connected disabilities affect his ability to maintain employment, including that his knee and ankle conditions cause problems with his ability to get on and off heavy equipment. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Based on the foregoing, the Board finds that the overall evidence of record is at least in equipoise as to a finding that given the Veteran's education and industrial background, he would have difficulty with most occupations due to his service-connected disabilities. Therefore, the Board concludes the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and that entitlement to a TDIU is warranted. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.