Citation Nr: 21023395 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-22 551 DATE: April 20, 2021 ORDER A total disability rating based on individual unemployability (TDIU) from May 24, 2017, is granted. REMANDED Entitlement to a TDIU prior to May 24, 2017, is remanded. FINDING OF FACT The Veteran’s combined disability rating is 50 percent prior to May 24, 2017, and 70 percent from May 24, 2017. From May 24, 2017, the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected posttraumatic stress disorder (PTSD) and hearing loss. CONCLUSION OF LAW As of May 24, 2017, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified during a Board virtual hearing before the undersigned Veterans Law Judge. The Board notes that additional evidence, namely a December 2018 letter from the Veteran’s treating physician, was added to the record after the issuance of a September 2017 supplemental statement of the case. Although the Veteran has not waived initial agency of original jurisdiction (AOJ) consideration this evidence, the AOJ will have opportunity to review the additional evidence received on remand for the remanded issue as set forth below. As for the issue of entitlement to a TDIU from May 24, 2017, granted herein, the Veteran has suffered no prejudice in the Board considering this newly received evidence with regards to that claim. 1. A TDIU from May 24, 2017 A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. For TDIU claims, the issue is whether a veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Veteran contends that his service-connected PTSD and hearing loss prevents him from obtaining and maintaining substantially gainful employment. See August 2014 VA Form 21-8940. The Veteran is assigned a 30 percent rating prior to March 27, 2014, 50 percent rating from March 27, 2014, to May 24, 2017, and 70 percent as of May 24, 2017, for his PTSD; a 10 percent rating for his bilateral tinnitus as of March 27, 2014; and a noncompensable rating for his hearing loss as of March 27, 2014. His combined rating is 30 percent prior to March 27, 2014, 60 percent from March 27, 2014, to May 24, 2017, and 70 percent as of May 24, 2017. As of May 24, 2017, the Veteran has met the minimum schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected PTSD and hearing loss prevent him from engaging in substantially gainful employment. While the record reflects that the Veteran had been self-employed as a farmer, he did not have income from that business in 2016 and into 2017, had been giving away his land as repayment for help with the farm, and such employment was on part-time basis working approximately one hour a day or seven hours a week in 2017. See March 2017 Veteran Statement. The Veteran testified at the April 2021 Board hearing that his only form of income was VA and Social Security benefits. Further, the totality of the record suggests that his psychiatric disability significantly limits his ability to work as he is constantly nauseous due to anxiety. In this regard, Dr. S.E.B. opined the Veteran had functional nausea related to anxiety, PTSD, and depression. The Veteran testified at the April 2021 Board hearing that he would not be able to go to work if his life depended on it because he feels sick all the time. Therefore, the Board resolves all reasonable doubt in the Veteran’s favor and finds that he is unable to secure and follow a substantially gainful occupation due to service-connected PTSD, as of May 24, 2017, the date when the Veteran met the minimum schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). REASONS FOR REMAND 1. Entitlement to a TDIU prior to May 24, 2017, is remanded. The Veteran does not currently meet the percentage requirements for a TDIU prior to May 24, 2017. 38 C.F.R. § 4.16(a). VA policy is, however, to grant a TDIU in all cases in which a service-connected disability causes unemployability. 38 C.F.R. § 4.16(b). The Board cannot grant TDIU in the first instance when a veteran does not meet the percentage requirements; instead, it is required to ensure that the issue is adjudicated by the Director of VA’s Compensation and Pension Service (C&P). Bowling v. Principi, 15 Vet. App. 1 (2001). Given the evidence suggesting the Veteran’s inability to secure and follow a substantially gainful occupation due to his service-connected PTSD prior to May 24, 2017, the claim should be submitted to the Director, Compensation Service for extra-schedular consideration of a TDIU prior to May 24, 2017. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to May 24, 2017, to the Director of Compensation and Pension Service for adjudication in accordance with 38 C.F.R. § 4.16(b). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.