Citation Nr: 21023620 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-21 345 DATE: April 21, 2021 ORDER Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is granted. FINDING OF FACT The most probative evidence of record is at least in relative equipoise as to whether the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1998 to July 2010. This case returns to the Board of Veterans’ Appeals (Board) from an appeal of a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in which the issue of TDIU was reasonably raised by the record. When this case was last before the Board in September 2018, it was remanded for additional development. The case has now been returned to the Board for adjudication. Entitlement to a TDIU is granted A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient other disabilities to bring the combined rating to 70 percent or more. Id. In adjudicating the issue of entitlement to a TDIU, the Board may not consider any nonservice-connected disabilities or advancing age. However, the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. As of April 2020, the Veteran’s service-connected disabilities consisted of depressive disorder, rated as 70 percent disabling; lumbar disc degeneration, rated as 40 percent disabling; radiculopathy of the left lower extremity associated with his lumbar dis degeneration, rated as 40 percent disabling; and right shoulder labral tear, rated as 10 percent disabling. The Veteran receives a non-compensable rating for sleep apnea, essential hypertension, Raynauds Phenoma in the right and left hands, gastroesophageal reflux, testicular torsion, and scars. His combined rating for compensation purposes is 90 percent. Therefore, the Veteran meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). The question for the Board is whether he is unable to secure and follow substantially gainful employment due to his service-connected disabilities. The Veteran was medically retired from service in 2010, after serving 12 years as a military police officer. He has not worked since then. The Veteran stated that he would attend interviews but was never hired because he was a liability due to his medical retirement. The Veteran graduated high school and completed a few college credits; however, he does not hold a college degree or any certifications or licenses. The Veteran receives Social Security disability benefits. During the Social Security Administration (SSA) hearing in 2013, a vocational expert testified that given the Veteran’s education, work experience and residual functional capacity, there are no jobs in the national economy that he could perform. The Veteran was found to be disabled since July 10, 2010. Additionally, the Veteran underwent a VA examination in September 2013, during which the examiner opined the Veteran’s depressive disorder resulted in occupational and social impairments with deficiencies in most areas such as work, school, family relations, judgment, thinking and or mood. The Veteran was afforded a VA examination in October 2019 in which the examiner opined the Veteran’s depressive disorder causes difficulty for the Veteran to function around other people and as a team. He further opined the Veteran is unable to tolerate being around other people for more than a few minutes; the Veteran’s fatigue makes concentration and focus difficult, and his depression causes difficulty sustaining energy and motivation to complete work assignments. He also stated the Veteran is unable to perform sedentary work. The Veteran asserted during this examination that his back has weekly flare-ups, during which he is unable to do anything and needs assistance to get out of bed and wash below his waist due to his back pain. Finally, the Veteran provided a private medical opinion in September 2020, in which the examiner found minimal events triggered outbursts in the Veteran. He opined the Veteran is unable to secure and follow substantially gainful employment, including sedentary unskilled work. The Veteran is incapable of meeting the standard requirements of sustaining adequate pace, productivity, and reliability, and appropriately interacting with others in the workplace due to his service-connected depressive disorder. The Veteran’s symptoms include but are not limited to: difficulty mainlining appropriate social behavior, difficulty interacting with coworkers, peers, and the general public; significant difficulties with memory maintaining concentration, focus, and pace due to racing and intrusive thoughts, anxiety, poor quality of sleep with daytime fatigue, depressed mood and overall lack of motivation. The examiner opined the amount of time the Veteran would be impacted by distressing and distracting symptoms of his service-connected depressive disorder would render him off-task or absent more than would be tolerated by the employers and he would be unable to meet the basic appropriate and professional interpersonal communication requirements of a workplace. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). The Board finds that the most probative evidence is at least in relative equipoise as to whether the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disorders. In reaching this determination, the Board has considered the significant level of functional impairment attributed to the Veteran’s service-connected depressive disorder and lumbar disorder, in addition to his limited occupational history, and finds that such factors support a TDIU. Thus, with resolution of reasonable doubt in the Veteran’s favor, entitlement to a TDIU is warranted. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Townsend, 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.