Citation Nr: 21025740 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-02 413 DATE: April 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT For the entire period on appeal, the Veteran is not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1993 to November 1996. The Veteran appealed a July 2011 rating decision by the Agency of Original Jurisdiction (AOJ). In January 2021, the Board remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A Board hearing was held in May 2019. A transcript is of record. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran last worked full-time in IT in 2009. See June 2020 VA Form 21-8940. He had 2 years of college education to obtain multiple computer related certifications. Id. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis for the entire period on appeal. The Veteran’s service-connected major depressive disorder (MDD) is rated at 50 percent disabling for the entire period on appeal and is related to his service-connected left hallux valgus deformity rated at 10 percent disabling for the entire period on appeal. These two conditions combine to a 60 percent rating throughout the entire period on appeal. This will be considered a single disability for purposes of TDIU. As such, the Veteran has met the schedular criteria for TDIU for the entire period on appeal. The April 2011 VA examination report regarding posttraumatic stress disorder (PTSD) noted concentration issues as not being able to get anything done, no motivation, daily panic attacks, that he left his last job in 2009 after arguing with his supervisor, that he has avoidance of others, and that he is unable to keep a job since he cannot concentrate. The Veteran stated that he stopped employment since he did not want to go anywhere, that he just stays at home, and he does not associate with people. See May 2019 Board Hearing Tr. at 8. The February 2020 VA examination report regarding hearing loss noted the Veteran had a hard time hearing which impacts conversations with others unless he is looking at them. The August 2020 VA examination report regarding foot conditions noted foot pain with ambulation and standing for over 5 minutes, incoordination, and lack of endurance. The March 2021 VA examination report regarding mental disorders noted insomnia, impaired concentration, hopelessness, loss of energy and initiative, a panic disorder, difficulty establishing relationships and adapting to stressful circumstances, memory issues, and excessive anxiety. The April 2021 VA examination report regarding foot conditions noted foot pain when walking and standing for long periods and constant use of a cane. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran worked in IT and with computers. Medical evidence suggests that the Veteran has concentration issues and issues regarding relationships with others due to his MDD. The Veteran left his previous employment due to an argument with his supervisor. Employment in IT and duties associated with computers would require constant attention to detail. However, the Veteran’s concentration, memory, panic attacks, and insomnia would prevent satisfactory perform of such duties. The Veteran’s left foot disability prevents him from working properly in any physical labor position. The Veteran constantly uses a cane. Therefore, any jobs requiring prolonged lifting, standing, or walking would not be suitable for the Veteran. This would include construction, home improvement, warehousing, or customer service positions. Given the Veteran’s hearing loss, the Veteran would be unable to work proficiently in an office setting that required communication with others since he is unable to hear conversations properly over the phone. The Veteran does not have experience in another industry apart from IT. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected disabilities, in combination, at least as likely as not prevented him from obtaining and maintaining substantially gainful employment for the entire period on appeal. (Continued on the next page)   Accordingly, resolving all doubt in the Veteran’s favor, the criteria for TDIU have been met, the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.