Citation Nr: 21014448 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-15 343 DATE: March 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective April 20, 2016. FINDING OF FACT As of April 20, 2016, the Veteran has been unable to obtain or sustain substantially gainful employment as a result of her service-connected disabilities. CONCLUSION OF LAW The criteria for an award of TDIU are met as of April 20, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1994 to November 1998 and from January 2003 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). It was most recently before the Board in September 2019, when the claim was denied. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated October 2020, the Court vacated the Board’s September 2019 decision and remanded the matter to the Board for compliance with the instructions included in the October 2020 Joint Motion for Remand (JMR) by the parties. The Veteran contends she is entitled to a TDIU due to service-connected disabilities. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one 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, 3.341, 4.16(a). Here, the Veteran’s service-connected disabilities are sinusitis with headaches, rated as 50 percent disabling; major depressive disorder, rated as 50 percent disabling; low back strain, rated as 20 percent disabling; right ankle sprain, rated as 10 percent disabling; and permanent scar on left forearm, rated as 10 percent disabling. Her combined rating for the entire appellate period is 80 percent. Therefore, the schedular rating requirement for a TDIU rating under 38 C.F.R. § 4.16 (a) is met for the entire appellate period, so effective April 20, 2016. Based on a review of the evidence, the Board concludes that an award of TDIU is warranted for the entire appellate period. The ultimate question before the Board is whether the Veteran is capable of substantial gainful employment, and this is a determination for the Board to make as the adjudicator of this appeal. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Considering all the evidence of record, the Board finds that the evidence weighs in favor of a finding that the Veteran is not capable of substantially gainful employment. In this regard, the Board notes that the Veteran last worked in 2015. On her July 2016 VA 21-8940 Veterans Application for Increased Compensation Based on Individual Unemployability, she indicated she has an associate’s degree but does not appear to have worked in her field. She reported previous jobs of working at a front desk, sorting mail, and as a technician for a utility company. The Veteran stated she believes she is physically and emotionally unable to work. VA treatment records reflect she recently completed physical therapy for back pain, but continued to report pain with lifting. She receives ongoing treatment for sinusitis. VA treatment records reflect symptoms of rapid mood fluctuation, anxiety with stress, poor sleep related to anxiety, and some passive suicidal thoughts. On her most recent March 2021 VA examination for major depressive disorder, the examiner noted the Veteran had occupational and social impairment with difficulties in most areas, and also noted symptoms consistent with her last March 2016 examination, but an increase in isolation and feelings of hopelessness. Considering the severity of the Veteran’s service-connected disabilities, as well as her employment and education history, and in affording her the benefit-of-the-doubt, the Board finds that she is unemployable due to her service-connected disabilities. The evidence is in favor of the grant of a TDIU. See 38 U.S.C. § 5107. Based on review of the evidence and procedural history of this appeal, the Board further finds an effective date of April 20, 2016 (the date of claim) is warranted for the grant of a TDIU; this is a complete grant of the benefit sought under these facts and procedural history. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dean, 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.