Citation Nr: 21021289 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 19-15 321 DATE: April 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran has been granted service connection for bilateral hearing loss, with an 80 percent rating; major depressive disorder, with a 50 percent rating, and; tinnitus, with a 10 percent rating. His combined rating is 90 percent. 2. The evidence is at least evenly balanced as to whether the Veteran is precluded from securing and following all substantially gainful employment for which his education and occupational experience would otherwise qualify him due to service-connected disabilities. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1963 to April 1966. He also had reserve service from May 1967 to April 1993, with various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision. This issue was previously remanded by the Board in November 2019 for additional development. That development has been completed and this case is properly before the Board. Entitlement to a TDIU The Veteran seeks a TDIU, asserting that his service-connected disabilities are of such severity as to prohibit all forms of gainful employment. A total disability 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities arising from a common etiology or a single accident are considered as one disability. Id. Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability). The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. Id. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. In the present case, the Veteran has been granted service connection for the following disabilities: bilateral hearing loss, with a 70 percent rating effective prior to January 3, 2020 and an 80 percent rating thereafter; major depressive disorder, with a 50 percent rating effective October 28, 2016, and; tinnitus, with a 10 percent rating effective April 6, 2016. His combined rating is 50 percent prior to October 28, 2016, and 90 percent effective since that date. Thus, he meets the schedular requirements for a TDIU. According to the Veteran’s TDIU application, he last worked full time in 1996 as a corporate trainer. He also stated that he had sales training and consulting work. He reported having a college degree, but no other specialized education, training, or skills. Viewing the evidence as a whole, and resolving all reasonable doubt in favor of the Veteran, his bilateral hearing loss has resulted in such impairment that his prior area of employment, corporate training, has become essentially impossible, according to the Veteran’s assertions. He also reported that he had to discontinue his volunteer work due to his service-connected disabilities. A VA examiner opined in January 2020 that the Veteran’s service-connected bilateral hearing loss and tinnitus did not result in any work restrictions, given proper hearing aids and adaptive devices. This examiner did not, however, offer an opinion regarding the Veteran’s employability which took into account his major depressive disorder. Moreover, the Board points out that medical examiners are only responsible for providing a full description of the effects of disability upon a veteran’s ordinary activity. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Given the Veteran’s functional impairment due to his combined limitations, and his educational and occupational history, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities prevent him from securing and maintaining gainful employment. As noted above, a January 2020 VA examiner found the Veteran employable despite his service-connected hearing loss and tinnitus, but his major depressive disorder was not considered. According to the most recent VA psychiatric examination, conducted in May 2017, his major depressive disorder results in a depressed mood, chronic sleep impairment, memory loss, and disturbances of motivation and mood, all of which could potentially affect his employability. The Veteran has been granted a 90 percent combined disability rating for nearly five years, itself indicative of a high degree of impairment. (CONTINUED ON NEXT PAGE) Overall, reviewing the evidence as a whole, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unable to secure and follow substantially gainful employment due his service-connected disabilities. Therefore, entitlement to a TDIU due to service-connected disabilities is warranted. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.