Citation Nr: 21025060 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 19-24 817 DATE: April 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1991 to May 2011. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in St. Petersburg, Florida. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to a TDIU is granted. In order to establish service connection for a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially-gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020). When the veteran’s schedular rating is less than total, a total rating based upon unemployability may nonetheless be assigned. If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. See 38 C.F.R. § 4.16(a) (2020). A total disability rating also may be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (2020); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment cannot be considered substantially-gainful employment. Generally, marginal employment exists when a veteran’s earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16(a) (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); see also Gilbert, supra. The Veteran is currently service-connected for sleep apnea, evaluated as 50 percent disabling; attention deficit hyperactive disorder (ADHD), evaluated as 50 percent disabling; a right shoulder strain, evaluated as 10 percent disabling; a left wrist strain, evaluated as 10 percent disabling; a cervical strain, evaluated as 10 percent disabling; a lumbar strain, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; as well as a right eyebrow scar and headaches both evaluated as noncompensable. The combined disability evaluation is 90 percent, with one disability evaluated as 40 percent or more. Thus, he meets the schedular criteria for a TDIU as outlined above. 38 C.F.R. § 4.16(a). Accordingly, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). With respect to the Veteran’s education and work experience, the Board notes that the September 2018 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) indicates that the Veteran last worked in April 2018. Since separation from service, he has reported being employed by Samsung, Office Depot, and several lawn companies. See March 2021 Board Hearing Transcript p. 4-7. He further reported that he was let go from these positions primarily for failing to perform in accordance with company standards. Id. In September 2018, the Veteran submitted two statements from his former employers regarding his employability. An August 2018 letter from J.B., one former employer, stated that the Veteran struggled to complete tasks, had difficulty communicating with others, and was unable to adapt to changes in the workplace. In a May 2018 letter, J.W., another former employer, stated that the Veteran had difficulty completing multifaceted tasks and communicating effectively with others. Both former employers indicated that the Veteran would not be employable in a traditional work setting. The VA examination reports of record documented findings that the Veteran’s short and long-term memory loss was the result of his ADHD. See VA Examination Report dated August 2018. Additionally, a December 2018 VA examiner concluded that the Veteran’s ADHD would impair his ability to complete tasks and learn new information in the workplace. VA treatment records reflect that the Veteran consistently reported having difficulties in the workplace due to his concentration difficulties and rigid personality. See VA Treatment Records dated January 15, 2012 and February 4, 2013 The Board notes that the Veteran’s VA psychological treatment provider, Dr. C.B., completed a Disability Benefits Questionnaire evaluating his ADHD in October 2018. The DBQ noted the Veteran’s memory loss was related to this condition. Additionally, Dr. C.B. opined that the Veteran’s ADHD would likely impact his ability to work and function in a traditional environment. She based this conclusion on his impaired verbal abstract reasoning, memory issues, and limited attention span. Records provided by the Social Security Administration (SSA) indicate that the Veteran was awarded disability benefits in March 2020. The records reflect that he was determined to be disabled, effective July 2019, apparently primarily due to his ADHD, lumbar spine condition, sleep apnea, and tinnitus. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350 (2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10; Floor v. Shinseki, 26 Vet. App. 376, 381 (2013). Based upon the evidence of record, the Board finds that it is at least as likely as not the Veteran is unemployable due to his service-connected disabilities. As noted above, he meets the schedular requirements, he has been unemployed throughout the pendency of this appeal, and his ADHD, combined with his other service-connected disabilities, has since been shown to be severe enough to preclude employment. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, 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.