Citation Nr: 21008858 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 12-32 794 DATE: February 18, 2021 ORDER Beginning April 18, 2020, but no earlier, entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, beginning April 18, 2020, his service-connected disabilities renders him unable to secure or maintain any substantially gainful occupation. 2. Prior to April 18, 2020, the Veteran was gainfully employed. CONCLUSION OF LAW Beginning April 18, 2020, but no earlier, the criteria for an award of a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1965 to July 1968, July 1971 to April 1974, and December 1981 to December 1985. In May 2017, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In May 2019, the Board remanded the issue of entitlement to a TDIU to clarify whether the Veteran was still working since the issue of unemployability was raised by the record. The case has since returned to the Board for further appellate consideration. Entitlement to a TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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. §§ 3.340, 4.16(a). Here, prior to July 23, 2014, the Veteran is service connected for PTSD rated as 70 percent disabling; headaches rated as 30 percent disabling; right shoulder disability rated as 10 percent disabling prior to June 2, 2014 and 20 percent disabling thereafter; right foot hallux valgus with metatarsalgia rated as 10 percent disabling; cervical spine disability rated as 10 percent disabling; tinnitus rated as 10 percent disabling; and, gastritis, left foot hallux valgus, left ear hearing loss, and bilateral eye pterygium rated as noncompensable. He has met the schedular criteria for a TDIU for the entire rating period on appeal. 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, 22 Vet. App. at 452. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran met the schedular criteria for a TDIU beginning January 23, 2013. For the reasons expressed below, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s is unable to maintain gainful employment due to his service-connected disabilities beginning April 18, 2020. During an April 2018 VA hand and finger examination, the examiner noted that the Veteran’s left thumb disability impacted his ability to work. Specifically, the examiner indicated that the Veteran had difficulty with gripping, pinching, or lifting more than approximately 5 pounds. The April 2018 VA audiology examination report noted that the Veteran’s hearing loss alone should not be a barrier to a wide range of employment settings. The examiner added that many individuals with the Veteran’s degree of hearing loss function well in many occupational settings. Nonetheless, the examiner added that this was not to say that the Veteran’s hearing loss would not cause some problems depending on the vocation. Functionally, this Veteran’s hearing loss may interfere with his ability to understand conversations in background noise and in situations where he is unable to see the speaker. He may have trouble working well in noisy environments and in environments which require him to often use non face-to-face communications equipment, or in jobs which require a great deal of attention to high pitched sounds. The examiner concluded that as long as reasonable accommodations are made for the Veteran, he should be able to perform most jobs for which he has the training and background. Although during the May 2017 hearing the Veteran reported that he got a new job, in an August 2020 statement, he explained that his last day of at the tire shop was April 17, 2020. The Veteran explained that he left the job due to the fact that his hearing loss was a constant distraction and danger to himself and other employees. Here, considering the Veteran’s occupational and educational background along with the above-mentioned evidence, which is at least in equipoise regarding whether his inability to work is impacted by his service-connected disabilities, the Board finds that he would not be able to maintain any type of employment that is consistent with his educational background and work experience. In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” to have two components: one economic and one noneconomic. The economic component 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. The non-economic component includes consideration of: the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Here, the Veteran’s work experience was as a prison guard and cart chaser in a tire shop, both which required good hearing and the use of both hands. Indeed, the evidence suggests that his left thumb and bilateral hearing loss disabilities prevents any employment in those industries. In other words, considering the Veteran’s work experience in construction with the fact that he only two years of college with short period of truck driving school but without subsequent training in any other field or any other work experience, it would be plausible to conclude that he would not be able to maintain gainful occupation in another field given his physical and hearing loss disabilities. (Continued on the next page)   Therefore, the Board resolves all doubt in the Veteran’s favor, finding that he is unemployable by reason of his service-connected disabilities beginning April 18, 2020, a day following his last day of employment. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.