Citation Nr: 21021122 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 19-20 587 DATE: April 9, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) from September 9, 2016 to February 29, 2020 is granted, subject to the rules and regulations governing the award of monetary benefits. FINDING OF FACT From September 9, 2016 to February 29, 2020, the Veteran’s service-connected major depressive disorder has rendered him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW For the period from September 9, 2016 to February 29, 2020, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from July 2015 to September 2016. 1. Entitlement to a total disability rating due to individual unemployability prior to February 29, 2020 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability 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 central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In February 2020, the Agency of Original Jurisdiction (AOJ) granted a 100 percent evaluation for the Veteran’s depressive disorder effective February 29, 2020. In September 2020, the Board dismissed the issue of entitlement to a TDIU beginning February 29, 2020 as being moot and remanded the period prior to February 29, 2020 for additional development. Therefore, the period for consideration is limited to the period prior to February 29, 2020. The Veteran has not submitted a formal application for a TDIU. However, the Veteran testified at the November 2019 Board hearing that he has not had a full-time job since he left the military in 2016. He stated that he briefly worked for a summer in electronic repairs, but that he was fired after not seeing eye to eye with his supervisor. There is no evidence that the Veteran was engaging in substantial gainful activity between September 2016 and February 2020. The Veteran is service connected for major depressive disorder with anxious distress and obsessive-compulsive disorder with panic attacks. Prior to February 29, 2020, he was rated as 70 percent disabled. Thus, he meets the schedular criteria for consideration of a TDIU. 38 C.F.R. § 4.16(a). In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran has been unable to gain/maintain a substantially gainful occupation due to his service-connected disability. In that regard, the evidence shows that the Veteran’s service-connected disability has impaired his ability to engage in any occupations, in that, he has difficulty attending to tasks at hand, maintaining conversations, has intrusive thoughts, cannot tolerate being around other people in any setting more than a few minutes, has multiple panic attacks a week, has disturbed sleep causing fatigue, and has obsessive thoughts and compulsions. In January 2021, a VA examiner was asked to provide an opinion on the Veteran’s ability to work prior to February 29, 2020. The examiner stated the Veteran would need significantly extra time for work breaks, an individual work setting with little if any time demands, flexibility to arrive and leave as needed, and coaching and varied support throughout each day. The Board finds that these significant mental limitations would make maintaining any substantially gainful job very difficult if not impossible. Significantly, the record reflects that the Veteran has not been gainfully employed throughout the appeal period despite the Veteran’s testimony that he wished he was able to work. (Continued on the next page)   Accordingly, for the period prior to February 29, 2020, in resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected major depressive disorder rendered him unable to secure or follow a substantially gainful occupation from the time of his discharge in September 2016 to his total disability rating established February 29, 2020. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.