Citation Nr: 21023925 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-11 119 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 is at least in equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to her service-connected disorders. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 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 U.S. Army from September 1988 to January 1992. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed the Board’s January 2020 denial of her claim to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (JMPR) in November 2020, asking that Board’s decision be vacated. In November 2020, the Court granted the JMPR and remanded the issue on appeal for readjudication in accordance with instructions set out in the JMPR. A TDIU may be assigned when the disabled person is unable to secure or 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 such 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, and sufficient additional disability must 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. The Board finds that the most probative evidence is at least in equipoise as to whether the Veteran has been unable to secure and follow a substantially gainful occupation due to her service-connected disorders during the rating period. With resolution of reasonable doubt in the Veteran’s favor, a TDIU is warranted. The Veteran’s service-connected disabilities include PTSD rated at 70 percent from May 15, 2018 and hallux valgus rated at 10 percent. The combined rating is 80 percent from May 15, 2018. The Veteran therefore meets the requirements for TDIU on a schedular basis under 38 C.F.R. § 4.16 (a). Thus, the question for the Board is whether the Veteran was unable to secure and follow substantially gainful employment due to her service-connected disorders. The Veteran’s DD Form 214 reflects that her military occupational specialty was a material control accounting specialist. She has a high school diploma. She has some formal training to be dental assistant and has taken sewing classes but did not complete either program. Her most recent occupation was as a postal service clerk from 1997 to 2006. The record reflects a significant amount of functional impairment attributed to the Veteran’s service-connected disabilities. The medical evidence includes a February 2010 private treatment record which demonstrated that the Veteran complained of depression, anxiety, insomnia, nightmares, flashbacks. She also had severe pain in both legs from bilateral hallux valgus and severe bronchial asthma. A private clinician opined that the Veteran was 100 percent disabled and could not work. A July 2011 SSA disability determination report indicated that the Veteran was found disabled under SSA since November 27, 2000 due to her bilateral feet deformities (hallux valgus) and severe major depressive disorder. It was noted that she had a combination of physical and mental impairments that imposed more than minimal restrictions on her ability to perform basic work activities and were severe impairments. A May 2018 VA examiner opined that PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A May 2018 VA examiner opined that bilateral hallux valgus did not affect the Veteran’s ability to perform any type of occupational task. The Veteran reported pain and flare-ups. During a flare-up she reported that she could not run or jog. The examiner concluded that there was no functional loss during flare-ups and that the Veteran’s hallux valgus symptoms were mild to moderate. A June 2020 examiner found the Veteran’s PTSD caused her to have difficulty focusing, socially connecting, feeling safe in public, and tolerating stress. The examiner further opined that her occupational functioning would be negatively impacted by her low tolerance for stress and high level of distraction by negative ruminating thoughts, and difficulty being around people. The examiner concluded the Veteran would have severe difficulty sustaining substantially gainful employment. A July 2020 examiner determined the Veteran’s service-connected hallux valgus are moderate in severity and would limit her from employment requiring prolonged standing or walking. 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 equipoise as to whether the Veteran is unable to secure and follow a substantially gainful occupation such that a TDIU is warranted. In reaching this conclusion, the Board has considered the significant level of functional impairment due to her service-connected disorders combined with her limited educational and occupational history and finds that such factors support a grant of TDIU. Thus, with resolution of reasonable doubt in the Veteran’s favor, a TDIU is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.