Citation Nr: 21015112 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-02 224 DATE: March 16, 2021 ORDER A total disability rating based upon individual unemployability (TDIU) due to the Veteran's service-connected disabilities is granted. FINDING OF FACT The Veteran is rendered unable to secure or follow substantially gainful employment as a result of service-connected disabilities. 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, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board), on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A July 2015 Board decision awarded the Veteran's service-connected major depressive disorder an increased disability rating of 50 percent, effective May 6, 2011, and, because the issue of entitlement to a TDIU was raised by the record, remanded the Veteran's appeal for further development by the AOJ. The Board hereby finds there has been substantial compliance with its July 2015 remand directives in connection with the Veteran's TDIU claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to TDIU The Board acknowledge that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual employability due to service-connected disabilities (TDIU) is considered a component of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. A total disability evaluation based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Generally, a total rating for compensation 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 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). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). Factual Background & Analysis Initially, the Board notes that although the Veteran filed a formal application for entitlement to TDIU in August 2019, his claim for TDIU is part and parcel of his May 2011 increased rating claim for depressive disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of his appeal, the Veteran alleged being unemployable since August 2008. See October 2011 Statement. For the period on appeal, the Veteran was service connected for depressive disorder at 50 percent, hearing loss at 40 percent until January 1, 2013 and 30 percent, thereafter, tinnitus at 10 percent and erectile dysfunction with a non compensable disability rating for a combined disability rating of 70 percent. Thus, the only remaining question is whether the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. The record shows that the Veteran has worked as photo developer, jewelry store owner, host at a restaurant and his last employment was as a deli clerk. On his application for TDIU, he reported a high school degree with no other education or training. The Veteran’s last employer stated that the Veteran last worked on July 20, 2008 and that the Veteran is not working due to an “involuntary-violation of company policy.”. See March 2020 VA Form 21-492. VA treatment records show that in October 2011, the Veteran reported “I am collecting SS disability for my tinnitus. The buzzing is so loud I can no longer focus. I cannot work because of this and my inability to hear. I no longer drive for lack of focus from my tinnitus and hearing loss…” In a September 2013 VA examination for mental disorders the examiner noted diagnoses of major depressive disorder and posttraumatic stress disorder and that both diagnoses will contribute to an inability to function well on any job. The examiner further noted that the Veteran's level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran’s mental disorders causes symptoms of depressed mood, suspiciousness, chronic sleep impairment, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationship, difficulty in adapting to stressful circumstances, including work or a work like setting and inability to establish and maintain effective relationships. In a May 2014 mental health private examination, the examiner noted that the Veteran would miss, leave work early or have trouble with concentration for three or more work days per month due to his mental problems and that more than once a month the Veteran would respond in an angry manner but would not actually become violent. The private examiner noted that the Veteran cannot sustain the stress from a competitive environment and cannot be expected to engage in gainful activity due to his depressive disorder. He added that the Veteran reports excessive absenteeism, trouble concentrating, and difficulty taking orders from others. Additionally, the hearing loss and tinnitus, in turn continue to manifest as a depressive disorder. The examiner opined that individuals with this pain and depressive disorder debilitation become disabled due to the holistic effect of medical and psychiatric disturbance just like the service-connected hearing loss, tinnitus and secondary depressive disorder endured by the Veteran, renders him incapacitated. In an August 2020 VA examination for hearing and tinnitus, the examiner noted that “the Veteran has a diagnosis of moderate to profound sensorineural hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear. With word recognition scores of 60% in the right ear and 74% in the left ear, even with hearing aids, the Veteran may have difficulty understanding speech, particularly if spoken softly, from a distance, in the presence of background noise, and without visual cues. The Veteran may have difficulty in an occupational environment that relies heavily on verbal communication; however, there are assistive devices and accommodations that can often be used to help overcome some of these challenges.” A September 2020 VA independent medical opinion report noted that the Veteran's tinnitus may be annoying or distracting, but should not impair his ability to function in an occupational environment or perform employment activities unless there is a secondary condition resulting from the Veteran's tinnitus that is impacting his ability to work. In an October 2020 VA examination for mental disorders, the examiner noted that the Veteran's level of occupational and social impairment as Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that his unspecified depressive disorder causes symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, and neglect of personal appearance and hygiene. The Veteran reported that he is not currently working, that he has been retired “for a long time, I can't get work with my disabilities.” He reported that he has not had a “job in so long”, and that he had difficulties holding jobs due to his medical and mental issues. The VA treatment notes, and lay testimony provided by the Veteran is consistent with the private and VA examinations of record. After reviewing all the evidence of record, to include VA treatment records, VA examination reports, and lay statements, the lay and medical evidence is at least in equipoise on the question of whether the Veteran’s combined service-connected disabilities have rendered him totally unemployable for purposes of individual unemployability benefits during the entire period on appeal. The record as a whole reflects that his service-connected disabilities, and specifically his psychiatric condition combined with his hearing and tinnitus, have rendered him unable to secure and follow gainful employment. The record reflects he was laid off from his last job for a violation of company policy to which the Veteran stated that he forgot to pay for a coffee due to his trouble remembering things and difficulty thinking clearly. VA treatment records and his lay statements further report that he has mild memory loss, difficulty dealing with stress and other people making his ability to work with public less likely. The Board’s decision is based on consideration of all lay and medical evidence, and consideration of the functional limitations of the combined service-connected disabilities, rather than reliance only on the opinion of a VA examiner viewing each disability in isolation. Furthermore, none of the VA examination opinions adequately addressed the interplay between the Veteran’s service-connected disabilities and his previous background, education, and employment history. The Board has considered the VA examiners’ medical opinions to the extent that they show the degree of functional impairment caused by the Veteran’s individual service-connected disabilities. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the service-connected disabilities are of sufficient severity to render the Veteran unable to follow or maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.