Citation Nr: 21008694 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 13-05 907 DATE: February 17, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran’s service-connected disabilities have precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2005 to May 2008. In an August 2017 Board decision, the issue of entitlement to a TDIU was found to have been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issue as inextricably intertwined with another issue in its August 2017 decision. The Veteran and his mother provided testimony pertaining to the issue of a TDIU at Board hearings in February 2017 and March 2020. VLJs who participate in hearings must participate in the final determination of the claim involved. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102 (a). Here, the Veteran’s two Board hearings were before different VLJs, thereby necessitating a panel decision by three VLJs. The Court of Appeals for Veterans Claims (CAVC) has held that a Veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2015). At the Veteran’s March 2020 Board hearing, he was advised of his right to another hearing before the third member of the panel pursuant to Arneson. The written transcript shows that the Veteran elected to waive his right to a third hearing before that individual. Accordingly, this case will be decided by the two VLJs who conducted hearings with the Veteran and by a third VLJ who has been independently appointed by a Deputy Vice Chairman of the Board. TDIU The Veteran is service-connected for traumatic brain injury (TBI), migraines, a left shoulder condition, a back condition, bilateral knee conditions, and bilateral knee residual scars. He meets the schedular rating criteria for a TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A TDIU is granted where a Veteran’s service-connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. The Veteran’s ratings for his service-connected disabilities meet the threshold criteria for consideration of a TDIU. 38 C.F.R. § 4.16(a). His combined disability rating is currently at 80 percent (the Board has granted service connection for a left shoulder disability in a separate decision which may impact his combined rating). The Veteran last worked in August 2014 in the food service industry. Based upon the evidence of record, including lay statements and VA examinations, it is clear that the Veteran is currently unable to obtain or maintain substantially gainful employment on account of his service-connected disabilities. The Veteran submitted two opinions from his VA psychiatrist pertaining to employability, one in June 2016 and an additional opinion in August 2016. In the June 2016 opinion, it was reported that the Veteran was being treated for psychotic disorder, which included both medication and counseling. The Veteran’s primary symptoms included paranoia, thought blocking, and difficulty with interpersonal relationships. The psychiatrist found that the Veteran’s psychotic disorder makes him unemployable. In the additional August 2016 opinion, the psychiatrist noted the Veteran’s symptoms of paranoia, thought blocking, depressed mood, and difficulty with interpersonal relationships, and explained that the Veteran had a history of TBI that may also explain some of these symptoms. In fact, the psychiatrist found that it was more likely than not that the Veteran’s past TBI was causing these symptoms. When the two opinions from the Veteran’s psychiatrist are taken together, the Veteran’s symptoms from his TBI make him unemployable. In addition to the Veteran’s mental health, the Veteran has undergone VA examinations pertaining to his other service-connected disabilities. In a November 2017 VA knee examination, it was reported that the Veteran’s knees impact his ability to work because he would have difficulty with work that required prolonged weight bearing, and he would not be able to perform work that required high impact activity such as running, jumping, or climbing. In both an October 2016 VA TBI residuals review evaluation, and an October 2016 VA headache examination, it was reported that the Veteran’s headaches would impact his ability to work because he would need a flexible work schedule to accommodate prostrating headaches that occur four to five times per month and last 24 to 48 hours. In an August 2015 VA shoulder examination, it was reported that the Veteran’s left shoulder would impact his ability to work because he would be limited to no overhead reaching or lifting of more than 20 pounds with his left arm. In a January 2015 VA back examination, it was reported that the Veteran’s back condition would impact his ability to work because he would be limited to no heavy lifting and no prolonged standing or sitting. The Veteran’s record pertaining to his past employment and his educational history, reflects that the Veteran has an associate degree in culinary arts, and that he has primarily worked as a cook. Based upon the foregoing, the Board finds that a TDIU is warranted as the Veteran would be unable to obtain or maintain substantially gainful employment. The Veteran’s education and work history place him working within the food service industry, which would require physical labor with prolonged standing, overhead reaching, and some heavy lifting. In addition, work in the food service industry requires successful interpersonal relationships. Additionally, beyond food service industry, the Veteran’s opportunities within other lines of work would be severely impacted by both his physical and mental limitations due to his service-connected disabilities as well. As such, a TDIU due to service-connected disabilities is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Marti N. Hyland Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.