Citation Nr: 21010753 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-24 862 DATE: February 25, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The weight of the evidence supports the conclusion that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to August 1982. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. A transcript of that hearing is of record. This issue was previously before the Board in January 2020. The claim for a TDIU was remanded because the January 2020 Board decision granted increased ratings for folliculitis and for scars and the Board sought medical opinions regarding the impact his service-connected disabilities had on his ability to work and for the regional office (RO) to readjudicate the claim. The Veteran was afforded VA examinations in August 2020 for his skin conditions and his left shoulder disability and the RO readjudicated his claim in an August 2020 supplemental statement of the case. As such, the Board finds that there has been substantial compliance as to the January 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU The Veteran asserts that he is entitled to a TDIU because his folliculitis, scalp and neck scarring, and his left shoulder condition rendered him unable to cook, weld, and work at Wal Mart as a stocker. He reported that he became too disabled to work in January 2013. See VA 21-9840 dated July 21, 2014. He has also reported that he worked as a part-time bus driver from August 2016 to the present. See VA 21-9840 dated June 9, 2020. He testified in August 2019 that his part-time work as a school bus driver was not enough to pay his mortgage and utilities and he did not consider it to be gainful employment. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is service connected for the following disabilities; folliculitis rated at 80 percent, effective January 2, 2014; depressive disorder rated at 30 percent, effective August 13, 2019; a left shoulder disability rated at 20 percent from July 3, 2008; and scars associated with folliculitis rated at 20 percent, effective January 2, 2014. The Veteran has a combined disability rating of 90 percent, from January 2, 2014, forward. Here, the Veteran has met the requirements for a TDIU. Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board notes that a TDIU may be granted if the Veteran’s salary is below the poverty threshold established by the U.S. Department of Commerce, Bureau of the Census. Additionally, the Veteran may be granted TDIU despite being employed and having an income in excess of the poverty line if his employment is sheltered. 38 C.F.R. § 4.16. The Veteran was afforded VA examinations for his folliculitis and associated scars in October 2015 and August 2020. Both of the VA examiners reported that the Veteran’s skin condition and scars would not impact his ability to work. However, the Board takes notice that the photographs of the Veteran’s neck at the VA examination showed his skin condition to be in a non-inflamed condition, whereas the undersigned can still vividly remember even two years after the hearing what the inflamed condition of the neck resembled. The Veteran was afforded VA examinations for his left shoulder disability in October 2015 and August 2020. The October 2015 VA examiner reported that his left shoulder disability impacted his ability to work because he would often use his right arm to stock shelves, due to left shoulder pain and when he did have to use both arms, his left shoulder would be painful. The August 2020 VA examiner reported that he would have difficulty with tasks that involved repeated use, including; lifting, carrying, reaching overhead, or applying constant pressure with his left arm. The examiner indicated that non-physical type work would be more suitable. The Veteran was afforded a VA examination for depressive disorder in October 2019. The examination was performed during the development of his service connection claim for depression. Therefore, the examiner did not report on the impact his depression had on his ability to work. However, the examiner reported the following symptoms; depressed mood, chronic sleep impairment, mild memory loss, and passive suicidal ideation. The Veteran and his wife reported that he attended both culinary and welding school but his folliculitis and associated scars hindered employment opportunities in both fields because restaurant patrons did not want to be served what he prepared due to his obvious scalp condition and his folliculitis prevented him from wearing protective head gear required to weld. The Board notes that the Veteran’s medical records furnished by the social security administration (SSA) shows that he has been found to be disabled. See Medical Treatment Records – Furnished by SSA received July 1, 2014. The SSA records also show that the Veteran filed for SSA disability based on a back injury, knee problems, and a shoulder injury. The Board also notes that the October 2015 VA examiner for the left shoulder reported that the Veteran hurt his back while stocking at Wal Mart and was the reason he left employment. The examiner also reported that the Veteran received a workman’s compensation settlement for his back. The Veteran also acknowledged that he received a workman’s compensation settlement from Wal Mart in his July 21, 2020 written correspondence. Here, the Board believes that the Veteran’s folliculitis and associated scars significantly hinders his ability to work as a cook or as a welder. His folliculitis and associated scars cause restaurant patrons discomfort and the skin on the back of his scalp prevents him from putting a helmet strap while welding. The Board recognizes that the Veteran underwent training to become a cook and welder. However, given the physical and mental limitations imposed by the Veteran’s service connected disabilities, the Board does not believe that the Veteran can be retrained to complete substantially gainful employment. The Veteran has asserted he does not have gainful employment because he has only been able to work part-time and never made enough to cover his mortgage and utilities. In a TDIU form, the Veteran reported that he had only received $3,000 from the job in the past year, which would not reach the poverty threshold. Accordingly, a TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.