Citation Nr: 21029346 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-19 860 DATE: May 13, 2021 ORDER A total disability rating based on individual unemployability due to service- connected disabilities (TDIU) is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's service-connected disabilities preclude his ability to secure and follow a substantially gainful occupation consistent with his education and occupational background. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from January 1964 to January 1966. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to TDIU. The matter of entitlement to a TDIU rating was referred in a December 2016 Board decision. The agency of original jurisdiction (AOJ) declined to adjudicate the issue but provided the Veteran with a 30 percent disability evaluation for his unspecified depressive disorder. See February 2017 Rating Decision (Codesheet). The Veteran filed a notice of disagreement (NOD) with the rating and explicitly requested that a TDIU rating be considered pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). See August 2018 NOD. In September 2019, the Board adjudicated the issue of an increased rating for unspecified depressive disorder and remanded the issue of a TDIU rating for further development. In December 2020, the Board again remanded the case to the RO for further development and adjudicative action. Entitlement to TDIU. The Veteran asserts that his service-connected disabilities prevent him from securing or following any substantially gainful employment. Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16(a) where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is rated at 40 percent or more and the combined disability rating is at least 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric; multiple injuries incurred in action; or, multiple disabilities incurred as a prisoner of war. Id. For the purposes of § 4.16 (a), marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. Consideration may be given to the veteran's education, special training, and previous work experience, but not to the veteran's age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16; see also Van Hoose, supra. Whether a TDIU is warranted is a legal and not a medical determination, and must take into account all of the medical and lay evidence. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"; "neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). The Veteran's service-connected disabilities include unspecified depressive disorder, rated as 70 percent disabling effective May 3, 2007; chronic recurring headaches rated as: 10 percent disabling from January 20, 2006, 30 percent disabling from August 22, 2008, and rated as 50 percent disabling from January 25, 2010; bilateral hearing loss rated as 10 percent disabling from September 20, 1995; scar of the occipital region rated as 10 percent disabling from July 19, 1999; peripheral vestibular disorder rated as 10 percent disabling from January 7, 2008; traumatic brain injury (TBI) rated as 10 percent disabling from October 12, 2011; and a forehead scar rated as noncompensable from May 22, 1968. The Veteran's combined disability rating is 80 percent from May 3, 2007 and 90 percent from August 22, 2008. As the Veteran has a single disability rated at 60 percent (or in the alternative he has a combined rating in excess of 70 percent with at least one disability rated at least 40 percent) the minimum percentage threshold requirements for consideration of a schedular TDIU are met. 38 C.F.R. § 4.16(a). In this case, the collective evidence shows that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation throughout the appeal period. The evidence indicates that the Veteran has been unemployed since 1979. While the Veteran has still not provided a completed VA Form 21-8940, VA treatment records, examination reports and hearing testimony indicate that the Veteran has consistently reported working as a police officer immediately following separation from active service but leaving in 1969 after five years due to a "nervous problem." See e.g. February 2008 VA examination. The Veteran reported working for a very short time as a maintenance man for a building and for a few months with a construction company in 1979. He stated that he slipped and hurt his back in April 1979 while trying to build a ladder and hurt his back. See May 1979 private neurosurgical evaluation. The Veteran has reported, and the evidence indicates, that he has not been employed since late 1979. The Veteran reported having a high school education and an Associate Degree in criminal justice. See December 2014 VA social work note. Regarding functional impairment due to the service-connected depressive disorder, the medical and lay evidence of record indicates that the Veteran's depressive disorder manifests in a flattened affect, poor concentration and memory, irritability, mood changes, verbal aggression, problematic family relationships, memory loss, intermittent auditory and visual hallucinations, intermittent disorientation to time and intermittently poor judgment and insight. See February 2008 and January 2015 VA examinations; see also VA treatment records dated in April 2006, November 2007, June 2010, August 2010, May 2014, February 2020. On a few occasions, the Veteran also endorsed suicidal ideation. See VA treatment notes dated in November 2007 and August 2010. The Veteran submitted an October 2011 private psychiatric evaluation report from private psychiatrist Dr. J.Z. Dr. J.Z. noted that the Veteran's mood was anxious, depressed and irritable. The Veteran was disoriented partially to time and his immediate, short-term and recent memory were affected. His remote memory was assessed as fair and his judgment and insight were assessed as good. His attention and concentration were assessed as poor and his intellectual functions were found to be diminished. The Veteran also submitted a June 2016 opinion from private psychiatrist Dr. A.I. who provided a detailed recounting of the Veteran's psychiatric history and treatment and stated that the Veteran is currently unemployable due to his neuropsychiatric conditions. There was no accompanying rationale. Regarding the Veteran's service-connected migraine headaches, an August 2008 VA examination indicates that the Veteran reported suffering from weekly migraine attacks, most of which are prostrating, that last hours. The VA examiner stated that during such episodes, the functional effect on the Veteran's usual daily activities would be severe. The examiner also noted that the Veteran experiences side effects of drowsiness and dyspepsia as a result of his migraine medication. Regarding TBI, the January 2010 VA examiner found that the Veteran would experience increased absenteeism due to his residuals of TBI which include "post-traumatic tension-type headache." The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). However, a medical examiner is responsible for providing a full description of the functional effects of disability upon a person's ordinary activity (see 38 C.F.R. § 4.10), and such has been done here. The findings, comments and opinions of the VA examiners and private and VA physicians have appropriately been considered as pertinent evidence, along with the Veteran's competent assertions, in determining whether he is able to perform the acts required for substantially gainful employment. In light of the foregoing, the Veteran is found to be unable to maintain employment due to his service-connected disabilities. The available evidence indicates that the functional impairment associated with the Veteran's service-connected disabilities, particularly his depressive disorder and chronic migraine headaches, would preclude the Veteran from returning to his prior work as a police officer or construction worker. Moreover, given his lack of any significant experience outside of those occupations, as well as his limited education, it is unlikely that he would be able to obtain gainful employment in a different profession that would not similarly be precluded by the symptoms of his service-connected disabilities. (Continued on the next page) Taken together, the symptoms associated with the Veteran's service-connected disabilities would make it extremely difficult for him to maintain substantially gainful employment. The Veteran's service-connected disabilities would allow only marginal employment at best, given the excessive restrictions they would put on finding adequate employment. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal). Accordingly, the evidence is at least evenly balanced as to whether the Veteran is precluded by his service-connected disabilities from obtaining and maintaining substantially gainful employment in occupations related to his education, training, and work experience. Resolving any reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted for the entire appeal period. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.