Citation Nr: 21024481 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-37 177 DATE: April 22, 2021 ORDER Effective August 23, 2019, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a TDIU prior to August 23, 2019 is remanded. FINDING OF FACT From August 23, 2019, the Veteran’s service-connected disabilities prevented her from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU from August 23, 2019 have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from November 1972 to March 1985. The Veteran presented sworn testimony at a hearing before a Veterans Law Judge (VLJ) in April 2013. This case has been before te Board on multiple occasions, and most recently in October 2020, when the Board found that the Veteran’s TDIU was part and parcel of the rating issue adjudicated therein, and pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) remanded the issue to the RO. 1. Effective August 23, 2019, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, and that, if there are two or more such 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. § 4.16(a). 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 any form of gainful employment consistent with his education and occupational experience. 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, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in December 2020, which reflects that she has two years of college education. She stated her service-connected perilymphatic fistula prevents her from securing or following any substantially gainful occupation, for which she has been seeking treatment since 2007. The Veteran noted October 2007 as the date when her disability affected full-time employment, and listed May 2009 as the last time she worked full-time and when she became too disabled to work. The Veteran worked as a cafeteria cashier at a public school from October 1996 through September 2009. More recently, she lists she worked part-time in bingo sales at a VFW Post for about 10 hours a week from December 2019 to January 2020. In December 2012 and September 2014 lay statements, the Veteran and her spouse asserted that the Veteran stopped working due to dizziness to avoid injury on the job and that her problems with perilymphatic fistula have rendered her unemployable. See December 2012 and September 2014 Correspondence. Additionally, in the August 2018 VA Ears examination, the examination found that the Veteran’s perilymphatic fistula (claimed as vertigo) impacted her ability to work. Per the Veteran, she had worked about 12 hours a week, part-time, since February 2018; however, her condition affects her ability to work, decreasing her tolerance to be able to complete daily activities and affects her daily productivity. Her July 2020 VA Hips examination also concluded that her bilateral trochanteric pain syndrome affected her ability to work as it caused decreased range of motion and difficulty in standing and walking. The Veteran’s service connected disabilities include the perilymphatic fistula, rated at 30 percent, psychiatric disability, rated at 30 percent, tinnitus at 10 percent, residuals of exostectomy and arthroplasty of right and left fifth toes at 10 percent, scars associated with right and left fifth toes at 10 percent, residual pain of right fifth toe at 10 percent, residual pain of left fifth toe at 10 percent, left hip trochanteric pain syndrome at 10 percent, right hip trochanteric pain syndrome at 10 percent, bilateral hearing loss at 0 percent, left hip flexion at 0 percent, right hip flexion at 0 percent, and right thigh impairment at 0 percent. The Veteran’s combined disability rating was 80 percent, effective August 23, 2019, and her disabilities met the schedular criteria set forth in 38 C.F.R. § 4.16(a)(2-3). Given the evidence regarding the aggregate impact of the Veteran’s service-connected physical and mental disabilities, the Veteran’s functional limitations due to these disabilities, and in light of her history, education, skill, work experience and training, and with resolution of all reasonable doubt in her favor, the Board finds that the evidence shows she was entitled to an award of a TDIU rating from August 23, 2019 on. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In light of the foregoing, the Board finds that entitlement to a TDIU was warranted. REASONS FOR REMAND 1. Entitlement to a TDIU prior to August 23, 2019 is remanded. As Veteran has stated through her VA Form 21-8940, she has not substantially and gainfully employed since May 2009, primarily due to her perilymphatic fistula which has been service-connected since March 2009. She has also held that her condition has rendered her unemployable. As the Veteran does not meet the schedular requirements for TDIU prior to August 23, 2019, and the Veteran has asserted and the evidence suggests that she was unable to work prior to that date because of her service-connected disabilities, whether to grant TDIU must first be assessed by the Director, Compensation Service. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. After giving the Veteran an opportunity to submit evidence in support of her claim for TDIU prior to August 23, 2019, refer the claim for a TDIU to the Director, Compensation Service, for the time period on appeal prior to August 23, 2019. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.