Citation Nr: 21015876 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 10-47 380 DATE: March 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran is service connected with several disabilities collectively rated at 70 percent or more. His service-connected disabilities preclude him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.17, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1987 to December 1989. TDIU Total disability ratings for compensation based on individual unemployability (TDIU) 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, 3.341, 4.16(a). The Veteran meets the schedular rating requirements for a TDIU, see 38 C.F.R. § 4.16(a), as he has multiple service-connected disabilities ratable at 70 percent or more with one disability ratable at 40 percent or more. The remaining (and dispositive) question is whether the Veteran’s service-connected disabilities render him incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Turning to the evidence, the Veteran completed VA’s Vocational Rehabilitation and Employment Program, see December 2017 VR&E General, pp. 1-2, and received a degree in polysomnography in 2018. See June 2019 Application for Increased Compensation Based on Unemployability, pp. 1-3. He last worked full-time in January 2019 at a sleep center. See December 2020 Correspondence, p. 1. The Veteran notes that he was released from his prior position because he was unable to pass his state certification test but indicated future plans to retake the test. Prior to the Veteran’s training in polysomnography, he worked primarily as a tradesman and laborer in manufacturing and warehousing. See June 2019 Application for Increased Compensation Based on Unemployability, pp. 1-3. The Veteran is service connected for depressive disorder and adjustment disorder, bilateral knee disabilities, tinnitus, and hearing loss. The Veteran’s bilateral knee disabilities interfere with his ability to kneel, crouch, climb stairs, and sit, stand or walk for prolonged periods of time. See September 2017 VA Examination, p. 4; February 2019 VA Examination, p. 4; September 2019 VA Examination, p. 11. The Veteran’s acquired psychiatric disability causes depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene. See July 2019 VA Examination, p. 6. (Continued on the next page)   The Board finds that the impact of these disabilities makes it impossible for the Veteran to secure and maintain substantially gainful employment. Most of the Veteran’s employment history consists of work that required him to perform physical labor, and his bilateral knee disabilities have interfered with his ability to perform physical labor in the past. Moreover, the Veteran’s depressive disorder and adjustment disorder cause symptoms such as anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances that would likely interfere with his ability to perform other work for which he may be qualified, to include work in a sedentary occupational setting. The Veteran does not have any other specialized education, training or other experience that suggests he may be able to secure gainful employment outside of his past work as a laborer or as a technician at a sleep center. The Board acknowledges that the Veteran still pursues active employment in polysomnography but notes that there is nothing in the regulatory criteria that indicates that a grant of entitlement to a TDIU requires a finding that the unemployability is permanent. See 38 C.F.R. § 4.16; but see 38 C.F.R. § 4.17. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to maintain a substantially gainful occupation as a result of his service-connected disabilities, and an award of TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, 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.